Notre Dame Law Review

Volume 84 | Issue 2 Article 3

1-1-2009

Brandenburg in a Time of TerrorThomas Healy

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Recommended CitationThomas Healy, Brandenburg in a Time of Terror, 84 Notre Dame L. Rev. 655 (2009).Available at: http://scholarship.law.nd.edu/ndlr/vol84/iss2/3

BRANDENBURG IN A TIME OF TERROR

Thomas Healy*

For four decades, the Supreme Court's decision in Brandenburg v. Ohiohas been celebrated as a landmark in First Amendment law. In one shortunsigned opinion, the Court distanced itselffrom the embarrassment of the RedScare and adopted a highly protective test that permits advocacy of unlawfulconduct in all but the most dangerous cases. But 9/11 and the threat of terror-ism pose a new challenge to Brandenburg. Although the government has notresorted to the excesses of McCarthyism, it has taken disturbing steps to silencethe speech of political dissenters. These efforts raise questions about the ade-quacy of Brandenburg to protect speech during a time of crisis and fear. Theyalso highlight ambiguities in the Brandenburg test that have been largelyignored by courts. For instance, does Brandenburg apply during war as wellas peace? Does it apply to private advocacy as well as public advocacy? And isthere anything about the current terrorist threat that would make its protectionsinapplicable?

To answer these and other important questions, this Article undertakes acomprehensive reexamination of Brandenburg and the issue of criminaladvocacy. It begins by demonstrating that Brandenburg has been graduallyeroded by lower courts, both before and after 9/11. It then examines two funda-mental questions at the heart of Brandenburg that have never been ade-quately answered: (1) Why should criminal advocacy be protected in the firstplace? and (2) How much protection should it receive? The Article argues thatcriminal advocacy should be protected because it furthers the underlying valuesof the First Amendment, including the search for truth, self-government, andself-fulfillment. It then rejects claims that criminal advocacy should receive less

© 2009 Thomas Healy. Individuals and nonprofit institutions may reproduceand distribute copies of this Article in any format, at or below cost, for educationalpurposes, so long as each copy identifies the author, provides a citation to the NotreDame Law Review, and includes this provision and copyright notice.

* Professor, Seton Hall Law School. B.A., University of North Carolina atChapel Hill;J.D., Columbia Law School. Thanks tojake Barnes, Vincent Blasi, ArleneChow, Carl Coleman, Tristin Green, Kent Greenawalt, and Edward Hartnett forhelpful feedback and to Matthew Schueller, Carolyn Conway, and Tenica Peterfreundfor excellent research assistance. Versions of this Article were presented at the NewYork Junior Scholars Workshop at Fordham Law School, at American UniversityWashington College of Law, and at St. John's Law School.

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than full protection and explains, for the first time, that Brandenburg isproperly understood as an application of strict scrutiny to a particular categoryof speech. Finally, the Article draws upon this reconceptualization of Branden-burg to resolve the many ambiguities in its framework.

INTRODUCTION ..................................................... 656I. CRIMINAL ADVOCACY AND THE FIRST AMENDMENT:

BRANDENBURG AND BEYOND ................................ 662A. The Brandenburg Decision ............................ 662B. Brandenburg in the Lower Courts ...................... 668C. The al-Tim im i Case ................................... 674

II. WHY SHOULD CRIMINAL ADVOCACY BE PROTECTED? ......... 682III. How MUCH PROTECTION SHOULD CRIMINAL ADVOCACY

RECEIVE? .................................................... 689A. Criminal Advocacy and Situation-Altering Utterances ...... 689B. Speaker Intent ......................................... 697C. Dangerousness ......................................... 702D. Brandenburg As Strict Scrutiny ........................ 704

IV. FILLING IN THE BRANDENBURG FRAMEWORK ................ 713A. What Does "Likely" M ean? ............................. 713B. What Does "Imminent" Mean? .......................... 715C. Is the Gravity of the Harm Relevant? ... ................. 718D. Public v. Private Speech and Ideological v. Nonideological

Speech ................................................ 722E. Brandenburg in War and Peace ....................... 726

F Is Advocacy of Terrorism Different? ...................... 729CONCLUSION ....................................................... 731

INTRODUCTION

One of the oldest and most important questions in First Amend-ment law is whether the government can prohibit speech that encour-ages others to break the law. This question was at the heart of theSupreme Court's first major speech cases in the early twentieth cen-tury and was the focus of significant debate until the 1969 case ofBrandenburg v. Ohio.' In that decision, the Court ruled that "advocacyof the use of force or of law violation" cannot be punished unless it is"directed to inciting or producing imminent lawless action and islikely to incite or produce such action. ' 2 More protective of speech

1 395 U.S. 444 (1969) (per curiam).2 Id. at 447.

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than any prior test, 3 the Brandenburg test has provided the governingstandard in this area for four decades and is often hailed as the finalword on the government's power to restrict criminal advocacy.4 Asthe distinguished scholar Harry Kalven once said, the Court's decisionin Brandenburg was "the perfect ending to a long story." 5

But the story may not be over after all. The fallout from 9/11 andthe "war on terror" are placing new pressures on the First Amend-ment that even Brandenburg may not be able to bear. Although thegovernment generally has not reacted to 9/11 with the kind of repres-sive speech laws that characterized earlier periods of crisis, 6 both fed-eral and state officials have engaged in quiet yet disturbing efforts tosuppress the speech of political dissenters. 7 In one case, a nurse withthe U.S. Department of Veterans Affairs was investigated after shepublished a letter that accused the Bush administration of criminalnegligence and urged readers to "'act forcefully to remove a govern-ment administration playing games of smoke and mirrors and viciousdeceit."' 8 Veterans Affairs officials seized the nurse's hard drive andinformed her that she was suspected of sedition. 9 They found no

3 Gerald Gunther, Learned Hand and the Origins of Modern First Amendment Doc-trine: Some Fragments of History, 27 STAN. L. REv. 719, 755 (1975) (describing the Bran-denburg test as "the most speech-protective standard yet evolved by the SupremeCourt").

4 Courts and scholars have used different words to refer to speech that encour-ages others to break the law. Some have used the term "incitement," while othershave used phrases such as "advocacy of unlawful conduct." I will avoid the word"incitement" because it is sometimes used to refer only to speech that encouragesimminent unlawful conduct, see Leslie Kendrick, Note, A Test for Criminally InstructionalSpeech, 91 VA. L. REv. 1973, 1987-88 (2005), and because it might imply that thespeaker has been successful in his encouragement, see Frederick Schauer, Speech, Beha-viour and the Interdependence of Fact and Value, in FREEDOM OF SPEECH AND INCITEMENT

AGAINST DEMOCRACY 43, 53-54 n.20 (David Kretzmer & Francine Kershman Hazaneds., 2000). Instead, I will use the term "criminal advocacy" as shorthand for longerphrases such as "advocacy of unlawful conduct," though I will sometimes use thelonger phrases as well. "Criminal advocacy" is not a perfect term since it excludesspeech that encourages the violation of civil statutes, but it is suitable for my purposes.

5 HARRY KALVEN, JR., A WORTHY TRADITION 232 (1988).6 For an excellent account of earlier efforts to restrict free speech, see generally

GEOFFREY R. STONE, PERILOUS TIMES (2004) (discussing the application of the FirstAmendment during tumultuous periods throughout American history).

7 For an account of some of these efforts, see generally MATTHEW ROTHSCHILD,

You HAvE No RIGHTS (2007) (describing violations of civil liberties under the Bushadministration).

8 David Weigel, Treason of the Clerk, R..ASON, July 2006, at 18, 18 (quoting LauraBerg, Letter to the Editor, Wake Up, Get Real, ALIBI, Sept. 15-21, 2005, http://alibi.com/index.php?scn=news&story=12767&fullstory=Y).

9 Id.

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incriminating evidence, however, and dropped their investigationunder pressure from the American Civil Liberties Union and thewoman's Senator.10

In another case, federal prosecutors targeted a Muslim graduatestudent who ran a website for an Islamic charity that was suspected oflinks to terrorist-financing networks.' 1 For a year, investigators moni-tored the student's phone calls and emails and followed him aroundcampus. They eventually charged him with three counts of providingmaterial support to terrorists and eleven immigration violations.12 Attrial, they argued that he had used the website to recruit terrorists,solicit donations, and spread inflammatory rhetoric. But the jury dis-agreed and acquitted him of the material support charges after just afew hours of discussion. 13 It also acquitted him of three of the elevenimmigration charges and deadlocked on the rest. 14

Perhaps the most troubling case, however, is the prosecution ofAli al-Timimi, an Islamic scholar who was convicted of counselingothers to violate federal gun laws, aid the Taliban, and levy war againstthe United States and its allies. I 5 According to testimony at his trial,al-Timimi attended a dinner five days after 9/11 with a small group ofMuslim men in Virginia to discuss the attacks and the possible back-lash against Muslims. 16 In response to questions, al-Timimi told themen they should leave the United States, join the mujahideen, andfight the enemies of Islam. 17 He also read the men a fatwa issued by aSaudi scholar who declared that all Muslims were obligated to defendAfghanistan in the event of a U.S. invasion.' 8 Over the next few days,four of the men flew to Pakistan to train at a camp operated by Lash-kar-e-Taiba, a group dedicated to driving India out of Kashmir.' 9

After a few weeks of weapons training, however, they learned thatPakistan had closed its border with Afghanistan and returned to theUnited States.20

10 Id.11 Maureen O'Hagan, A Terrorism Case That Went Awry, SEATrLE TIMES, Nov. 22,

2004, at Al.12 Id.13 Id.14 Id.15 See infra Part I.C (discussing the al-Timimi case in depth).16 Defendant's Motion for Judgment of Acquittal at 20, United States v. Al-

Timimi, No. 1:04-cr-385 (E.D. Va. July 13, 2005).17 Id. at 25.18 Id. at 31.19 Id. at 34-41.20 Id. at 42-43; see Matthew Barakat, Defense Calls Trial Attack on Freedom, RICH-

MOND TIMES-DISPATCH, Apr. 19, 2005, at BI [hereinafter, Barakat, Trial Attack]; Mat-

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Under a literal reading of Brandenburg, al-Timimi's speech seemsclearly protected. Even if one concedes that his words were directedto inciting or producing lawless conduct, there was no evidence theywere directed to inciting imminent action. Al-Timimi did not say whenthe men should join the mujahideen, and at the time of the dinner theUnited States had not yet begun hostilities in Afghanistan. 21 Therewas also little evidence that his words were likely to lead to imminentlawless conduct.22 Although several of the men did travel to Pakistan,Lashkar-e-Taiba had not yet been declared a terrorist group, and itwas legal for Americans to visit the camp. 23 Moreover, the men didnot leave for Pakistan until several days after the dinner and did notarrive at the camp until several weeks later. And in a case decidedshortly after Brandenburg, the Court reversed a conviction where thespeaker's words could have led to illegal conduct later the same day,suggesting that "imminent" means immediate, not several days orweeks later. 24 Yet al-Timimi's conviction was upheld by a federaljudge, and he was sentenced to life in prison.25

Al-Timimi has appealed his case to the Fourth Circuit, and it ispossible that his conviction will be reversed. 26 But as the first success-ful prosecution of terrorist-related speech since 9/11, his case raisesimportant questions about the adequacy of Brandenburg to protect

thew Barakat, 'Va. Jihad' Witness Says He Urged Holy War, FREE REPUBLIC, Apr. 11, 2005,http://ww.freerepublic.com/focus/f-news/1381779/posts [hereinafter Barakat, HolyWar].

21 See Elisabeth Bumiller, Bush Pledges Attack on Afghanistan Unless It Surrenders BinLaden Now: He Creates Cabinet Post for Security, N.Y. TIMES, Oct. 8, 2001, at Al.

22 SeeJohn C. Knechtle, When to Regulate Hate Speech, 110 PENN. ST. L. REv. 539,571 (2006) (arguing that al-Timimi's speech did not meet the imminence require-ment under "traditional Brandenburg analysis").

23 See infra note 194 and accompanying text.

24 Hess v. Indiana, 414 U.S. 105, 106-09 (1973) (per curiam) (reversing convic-tion of protestor who shouted, "We'll take the fucking street later [or again]" afterpolice forced a group of demonstrators to move to the curb); see also infra notes 64-76

and accompanying text (discussing Hess in detail).

25 Eric Lichtblau, Scholar Is Given Life Sentence in 'Virginia fihad' Case, N.Y. TIMES,July 14, 2005, at A21.

26 In addition to challenging his conviction on First Amendment grounds, hisattorneys claim that al-Timimi was the subject of illegal National Security Agency(NSA) wiretaps. The Fourth Circuit remanded the case to the district court to con-

sider this claim. Eric Lichtblau, Cleric Wins Appeal Ruling Over Wiretaps, N.Y. TIMES,Apr. 26, 2006, at A17. The district court has not yet finished its review of the case, but

a congressional oversight committee recently announced that it plans to ask theNational Security Agency to investigate al-Timimi's claim. Eric Lichtblau & JamesRisen, Panel to call for N.S.A. Investigation into Wiretapping of Muslim Scholar, N.Y. TIMES,Dec. 8, 2008, at A22.

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speech during a time of national crisis and widespread fear.27

Although Brandenburg was decided during the Vietnam War, thespeech in that case was not related to the war and did not implicateconcerns about national security. The decades since Brandenburg havealso provided little opportunity to test the strength of its protections.But as the al-Timimi case shows, the threat of terrorism poses a signifi-cant challenge to the Brandenburg framework. Not since the RedScare of the 1950s has there been such deep-seated suspicion and anx-iety in the country, much of it directed at those with different relig-ious and political beliefs. Whether Brandenburg can-or evenshould-survive in this climate is an important question that needs tobe addressed.

The al-Timimi case also exposes gaps in the Brandenburg frame-work that have been largely glossed over by courts and scholars.28 Forinstance, Brandenburg does not tell us how likely it must be that speechwill lead to unlawful conduct or how imminent that conduct must be.Nor does it tell us whether the likelihood or imminence requirementsvary depending upon the gravity of the harm that is advocated. Bran-denburg also does not make clear whether it applies to private speechas well as public speech, whether it applies during war as well as peace,or whether it overrules the Cold War case of Dennis v. United States,2 9

which upheld the conviction of communists for conspiring to advo-cate the overthrow of the government. 30 Finally, Brandenburg does nottell us whether there is anything about the current terrorist threat that

would make its protections inapplicable.The goal of this Article, then, is twofold. First, it aims to deter-

mine whether Brandenburg is adequate to protect speech during a

time of terror. Second, it seeks to provide answers to the many ques-tions left unresolved by Brandenburg. The two aims are closely relatedbecause Brandenburg is not likely to provide adequate protection for

speech until some of its ambiguities are resolved. The history of the

First Amendment is filled with cases in which courts failed to protect

27 See, e.g., Larry Alexander, Incitement and Freedom of Speech, in FREEDOM OF

SPEECH AND INCITEMENT AGAINST DEMOCRACY, supra note 4, at 118 (questioningwhether Brandenburg could withstand a wave of "Oklahoma City-like bombings by mili-tia groups"); Laura K. Donohue, Terrorist Speech and the Future of Free Expression, 27CARDozo L. REV. 233, 240 (2005) ("[Brandenburgs] strength in the face of modemterrorism remains less than clear.").

28 See MARTIN H. REDISH, FREEDOM OF EXPRESSION 184-86 (1984) (highlightingthe many ambiguities of the Brandenburg test); Marc Rohr, Grand Illusion? The Bran-denburg Test and Speech That Encourages or Facilitates Criminal Acts, 38 WILLAMETTE L.REV. 1, 14 (2002) (same).

29 341 U.S. 494 (1951).30 Id. at 516-17 (plurality opinion).

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speech during times of crisis and fear.3' As long as there are signifi-cant gaps in the Brandenburg framework, it will be too easy for courtsto sacrifice speech during the present crisis.32

The Article has four parts. In Part I, I briefly discuss the historyof the Brandenburg opinion and the few subsequent cases in which itstest has been applied. I then discuss the application of Brandenburg bythe lower courts to show how its protections have been graduallyeroded over the years. Finally, I discuss the al-Timimi case in detail todemonstrate that, during times of crisis, even the celebrated Branden-burg test is vulnerable to backsliding.

In Parts II and III, I step back to address the normative questionsthat underlie the Brandenburg test: (1) why should criminal advocacybe protected in the first place? and (2) how much protection should itreceive? Although the Court has spent considerable time addressingthe second question, it has spent far less time addressing the first.This is unfortunate because the reasons we settle on for protectingcriminal advocacy should dictate how much protection it receives. Inaddition, developing a strong theoretical foundation for the protec-tion of criminal advocacy can help prevent slippage during periodswhen the temptation to suppress speech is particularly strong. In PartII, I therefore explore various justifications for protecting criminaladvocacy before concluding that such speech should be protectedbecause it furthers the underlying values of the First Amendment,including the search for truth, self-government, and self-fulfillment.In Part 111, 1 consider and reject several arguments for giving criminaladvocacy less than full First Amendment protection. Specifically, Ireject claims that criminal advocacy is a hybrid of speech and action,that it should receive reduced protection because of the speaker'sintent, and that it is inherently more dangerous than other speechthat is fully protected. I then acknowledge that even fully protectedspeech is not absolutely protected. Under strict scrutiny, the govern-ment may prohibit speech when doing so is necessary to further acompelling governmental interest.33 Applying this standard, I arguethat criminal advocacy should be protected unless it is intended to,

31 See generally STONE, supra note 6 (discussing the application of the First Amend-ment during tumultuous periods throughout American history).

32 See THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 10 (1970)(arguing that free speech doctrine must be precise or else "the forces that presstoward restriction will break through the openings, and freedom of expression willbecome the exception and suppression the rule"). But see REDISH, supra note 28, at211 (rejecting rigid tests because they force courts to choose between too much pro-tection and too little).

33 See Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).

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and likely to, produce imminent lawless conduct. This, of course, isidentical to the Brandenburg test, and I conclude Part III by arguingthat Brandenburg should be understood as an application of strict scru-tiny to a particular category of speech and that its ambiguities shouldbe resolved with that standard in mind.

In Part IV, I draw upon this reconceptualization of Brandenburg toresolve its many ambiguities and reach the following conclusions: (1)the likelihood requirement should be interpreted to mean that, ingeneral, criminal advocacy can be prohibited only if there is a "sub-stantial chance" or "fair probability" that it will produce imminent law-less conduct; (2) the imminence requirement should be interpretedto mean that, in general, criminal advocacy can be prohibited only if itis directed to, and is likely to, produce unlawful conduct within severaldays; (3) the likelihood and imminence requirements should not varyfrom case to case based upon the gravity of the harm advocated, butshould be modified at the margins for advocacy of both extremelyminor and extremely serious crimes; (4) Brandenburg should apply toall criminal advocacy, whether it takes place in public or private andwhether it is ideological or nonideological in nature; (5) Brandenburgshould apply during times of war as well as peace; (6) Brandenburgshould be understood as undermining Dennis v. United States so signifi-cantly that the latter case is a remnant of abandoned doctrine thatcannot be taken seriously as precedent; and (7) there is nothing aboutthe war on terror that justifies abandoning Brandenburg. We havebeen through crises equally threatening to our security in the past,and just as it was a mistake to suppress speech unnecessarily duringthose periods, it would be a mistake to do so now.3 4

I. CRIMINAL ADVOCACY AND THE FIRST AMENDMENT: BRANDENBURG

AND BEYOND

A. The Brandenburg Decision

When the Supreme Court decided Brandenburg v. Ohio in 1969, itwas not writing on a clean slate. For a half-century, the Justices had

34 This Article addresses only criminal advocacy. It does not address a relatedcategory of speech-sometimes called criminal instruction or crime-facilitatingspeech-that provides knowledge and information that may facilitate crime by others.See generally Eugene Volokh, Crime-Facilitating Speech, 57 STAN. L. REV. 1095 (2005)(discussing the distinctions and uses of crime-facilitating speech, as well as the extentto which it is covered by existing First Amendment law). Although these two types ofspeech sometimes overlap (as when a speaker encourages another person to rob abank while also providing the combination to the safe), they are sufficiently differentthat it makes sense to treat them separately. Id. at 1102 n.41.

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been struggling to define the proper level of protection for dangerousand subversive speech. The story of this struggle is one of the mostwell-known in constitutional law, so I will not repeat it here.35 But inorder to properly understand the changes that Brandenburg broughtabout, it is helpful to briefly recall the arc of that struggle.

Prior to 1919, the Court took a limited view of the First Amend-ment, holding that speech could be prohibited if it had any tendencyto cause harm, no matter how remote.3 6 In that year, Justice Holmesannounced his famous "clear and present danger" test,37 which, asrefined by him and Justice Brandeis over the next decade, protectedspeech unless it was likely to lead to serious imminent harm. 38

Although a majority of the Court initially resisted this view, it gradu-ally grew more protective of speech, 39 and by World War II it hadadopted the Holmes-Brandeis approach. 40 The Court's commitmentto free speech faltered during the Cold War, and in Dennis v. United

35 For an account of this history, see generallyJohn F. Wirenius, The Road to Bran-den burg: A Look at the Evolving Understanding of the First Amendment, 43 DRAKE L. REv. 1(1994) (tracing the history of First Amendment jurisprudence from the earlyninteenth century to Brandenburg).

36 See Zechariah Chafee, Jr., Book Review, 62 HARV. L. REv. 891, 901 (1949).37 Schenck v. United States, 249 U.S. 47, 52 (1919) ("The question in every case is

whether the words used are used in such circumstances and are of such a nature as to

create a clear and present danger that they will bring about the substantive evils that

Congress has a right to prevent.").

38 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)(stating that the "expression of opinions" is protected "unless they so imminently

threaten immediate interference with the lawful and pressing purposes of the law thatan immediate check is required to save the country"); Whitney v. California, 274 U.S.

357, 376 (1927) (Brandeis, J., concurring) ("In order to support a finding of clearand present danger it must be shown either that immediate serious violence was to beexpected or was advocated or that the past conduct furnished reason to believe that

such advocacy was then contemplated."), overruled in part by Brandenburg v. Ohio, 395U.S. 444 (1969) (per curiam).

39 See Herndon v. Lowry, 301 U.S. 242, 259-64 (1937) (overturning convictions of

a communist organizer because there was no evidence he had advocated unlawfulaction); DeJonge v. Oregon, 299 U.S. 353, 364-67 (1937) (same); Stromberg v. Cali-

fornia, 283 U.S. 359, 368-70 (1931) (reversing a conviction for displaying a red flag inviolation of state law because the jury instructions had permitted a conviction on thebasis of mere opposition to the government); Fiske v. Kansas, 274 U.S. 380, 387

(1927) (reversing a conviction under a syndicalism law because there was no evidencethe defendant had advocated the overthrow of government).

40 See Bridges v. California, 314 U.S. 252, 261-63 (1941) (describing the Court'sadoption of the "clear and present danger" test in past cases); see also Thomas v. Col-lins, 323 U.S. 516, 530 (1945) ("[A]ny attempt to restrict [First Amendment] libertiesmust be justified by clear public interest, threatened not doubtfully or remotely, but

by clear and present danger.").

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States it upheld the convictions of communist leaders for conspiring toadvocate the overthrow of the U.S. government.4a Dennis significantlyweakened the "clear and present danger" test, permitting speech to beprohibited as long as the feared harm was grave enough, regardless ofwhether it was imminent or likely.4 2 But as the hysteria of McCarthy-ism abated during the 1950s, the Court slowly retreated from Dennis,holding in Yates v. United States43 that speakers could not be punishedmerely for advocating beliefs, not action. 44

That's where matters stood when the Court decided Brandenburg.The defendant was a Ku Klux Klan leader who had invited a televisioncrew to a small rally on a farm outside Cincinnati. 45 During the rally,he gave a speech in which he said, "'We're not a revengent [sic]organization, but if our President, our Congress, our Supreme Court,continues to suppress the white, Caucasian race, it's possible thatthere might have to be some revengance [sic] taken.' ,,46 He also said,"'Personally, I believe the nigger should be returned to Africa, the Jewreturned to Israel.' ,47 After the speech was broadcast, he was arrestedunder Ohio's syndicalism law, which made it illegal to advocate crimeor violence or to assemble with a group for that purpose.48

The Court's unanimous opinion was short and unsigned.4 9 Afterdescribing the facts, it noted that the Ohio law was similar to a Califor-nia law upheld forty-two years earlier in Whitney v. California.50 But

hitney had been "thoroughly discredited by later decisions," theCourt said, inexplicably citing Dennis as support.51 It then offered thefollowing statement of law:

41 See Dennis v. United States, 341 U.S. 494, 509 (1951) (plurality opinion).42 Id. at 510 (embracing Learned Hand's statement that courts "'must ask

whether the gravity of the "evil," discounted by its improbability, justifies such inva-sion of free speech as is necessary to avoid the danger'" (quoting United States v.

Dennis, 183 F.2d 201, 212 (2d Cir. 1950))).

43 354 U.S. 298 (1957), overruled by Burks v. United States, 437 U.S. 1 (1978).

44 Id. at 318-27 (rejecting interpretation of Smith Act that would have made

advocacy of rebellion a crime).

45 Brandenburg v. Ohio, 395 U.S. 444, 445 (1969) (per curiam).

46 Id. at 446.

47 Id. at 447.

48 Id. at 444-45.49 The first draft was written by Justice Fortas, who resigned before the decision

was issued. Bernard Schwartz, Justice Brennan and the Brandenburg Decision-A Law-

giver in Action, 79 JUDICATURE 24, 27-28 (1995). Justice Brennan then revised the

opinion, which was issued per curiam. Id. at 28.

50 See Brandenburg, 395 U.S. at 447.

51 Id. (citing Dennis v. United States, 341 U.S. 494, 507 (1951) (plurality

opinion)).

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These later decisions have fashioned the principle that the constitu-tional guarantees of free speech and free press do not permit aState to forbid or proscribe advocacy of the use of force or of lawviolation except where such advocacy is directed to inciting or pro-ducing imminent lawless action and is likely to incite or producesuch action.52

Applying this principle, the Court held that the Ohio law violatedthe First Amendment because it made no distinction between "mereadvocacy" and "incitement to imminent lawless action. '53 The Courtalso expressly overruled Whitney.54

Brandenburg changed the law in several ways. First, it embracedthe Holmes-Brandeis view of "clear and present danger" by statingthat advocacy of unlawful conduct can be punished only if it is likelyto lead to imminent lawless conduct.55 It thus refuted the Court's state-ment eight years earlier in Scales v. United States56 that speakers can bepunished for merely advocating future law violations. 5 7 Second, Bran-denburg added a new requirement to the "clear and present danger"test. In addition to proving that the speaker's words were likely to leadto imminent lawless conduct, the government must prove that theywere directed to producing imminent lawless conduct.58 This was adeparture from the Holmes-Brandeis view. In 1919, Holmes had writ-ten that speech could be punished if it posed a present danger ofbringing about immediate harm or was intended to do so. 59 Branden-burg changed that "or" to an "and," protecting speech unless it wasboth likely to lead to immediate harm and directed to doing so.

The Court offered no explanation for these changes. Instead, itportrayed the new test as a simple application of Dennis and Yates.After announcing the test, the Court wrote in a footnote: "It was onthe theory that the Smith Act embodied such a principle and that ithad been applied only in conformity with it that this Court sustained

52 Id.53 Id. at 449.54 Id.55 Id. at 447.56 367 U.S. 203 (1961).57 See id. at 251 ("Dennis and Yates have definitely laid at rest any doubt that pre-

sent advocacy of future action for violent overthrow satisfies statutory and constitu-tional requirements equally with advocacy of immediate action to that end.").

58 Brandenburg, 395 U.S. at 447.59 Abrams v. United States, 250 U.S. 616, 627 (1919) (Holmes, J., dissenting)

("[T]he United States constitutionally may punish speech that produces or isintended to produce a clear and imminent danger that it will bring about forthwithcertain substantive evils that the United States constitutionally may seek to prevent."(emphasis added)).

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the Act's constitutionality. That this was the basis for Dennis wasemphasized in Yates v. United States .... ,,60 This footnote was eitherdisingenuous or written by someone who had read neither Dennis norYates. Neither decision limited the Smith Act to advocacy of imminentunlawful conduct. As Justice Harlan explained in Yates, they stoodmerely for the principle that "those to whom the advocacy isaddressed must be urged to do something, now or in the future, ratherthan merely to believe in something."6 1

There are other oddities to Brandenburg as well. Why did JusticeHarlan, who had written Yates and Scales, join an opinion that soclearly mischaracterized their holdings? And why did the Courtendorse such a bold principle when the facts did not require it? Asseveral scholars have noted, the defendant in Brandenburg did noteven clearly advocate unlawful conduct; at most, he suggested that theKlan might cause trouble if the government ignored its concerns. 62

Thus, the Court could have reversed his conviction on the groundthat he had not urged unlawful conduct either now or in the future.

Indeed, because the Brandenburg test was broader than necessaryto resolve the case, it is tempting to characterize it as dicta. 63 But theCourt has not treated it that way. Four years later in Hess v. Indiana,64

it reversed the conviction of a student who was arrested during an

antiwar protest.65 The evidence showed that more than 100 protes-tors had blocked traffic and refused orders to clear the street. 66 Whenpolice finally moved the crowd to the curb, the defendant shouted,"We'll take the fucking street later [or again]. ' ' 67 He was arrested,charged with disorderly conduct, and convicted. 68 The IndianaSupreme Court agreed with the trial court that his statement "'wasintended to incite further lawless action on the part of the crowd inthe vicinity of appellant and was likely to produce such action.' 69

The U.S. Supreme Court disagreed. "At best," it asserted, "thestatement could be taken as counsel for present moderation; at worst,

60 Brandenburg, 395 U.S. at 447 n.2 (citations omitted).

61 Yates v. United States, 354 U.S. 298, 325 (1957) (second emphasis added).

62 Rohr, supra note 28, at 7 (explaining that the "facts played no part in the

Court's resolution of the case").63 See id. at 9 (arguing that it is "inescapable" that the test articulated in Branden-

burg was unnecessary for resolution of the case).

64 414 U.S. 105 (1973) (per curiam).

65 See id. at 108-09.66 See id. at 106.67 Id. at 107. There was apparently conflicting testimony as to whether the defen-

dant said "later" or "again."

68 Id. at 105-06.69 Id. at 108 (quoting Hess v. State, 297 N.E.2d 413, 415 (Ind. 1973)).

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it amounted to nothing more than advocacy of illegal action at someindefinite future time." 70 The Court then held that this was insuffi-cient to justify the conviction and quoted the Brandenburg test verba-tim. 71 Three Justices dissented, arguing that the Court hadimpermissibly second-guessed the lower court's evidentiary findings.But they did not question the majority's reliance upon Brandenburg.72

Hess thus clearly understood the Brandenburg test to be control-ling law. It also shed some light on the Court's understanding of thetest. As a number of scholars have pointed out, when the defendantsaid, "We'll take the fucking street later [or again]," he "almost cer-tainly meant later [or again] that same day."73 Yet the Court held thathis statement was not directed to produce imminent disorder: "[A] tworst, it amounted to nothing more than advocacy of illegal action atsome indefinite future time. '7 4 This suggests that the Court viewedthe imminence requirement strictly.75 Advocating unlawful conductat some indefinite point on the same day is not sufficient. Instead, aspeaker must advocate unlawful conduct within a shorter time frame.

This is not the only possible interpretation of Hess. One mightargue that the Court was influenced more by the indefinite nature ofthe defendant's advocacy than by the time frame. One might alsoargue that the Court would relax the imminence requirement if thegravity of the harm were greater.76 But at a minimum, Hess shows thatthe Court took Brandenburg seriously.

Aside from Hess, the Court has applied Brandenburg in only oneother case. In NAACP v. Claiborne Hardware Co.,77 it reversed a judg-ment against black defendants for organizing a boycott of whitemerchants in Mississippi.78 One of the defendants was Charles Evers,a field secretary for the NAACP who had threatened retaliation

70 Id.71 See id.72 Id. at 111 (Rehnquist, J., dissenting) ("The simple explanation for the result in

this case is that the majority has interpreted the evidence differently from the courtsbelow.").

73 Rohr, supra note 28, at 12; see also, e.g., KENT GREENAWALT, SPEECH, CRIME, AND

THE USES OF LANGUAGE 267 (1989) (reasoning that the defendant likely contemplateda delay of "hours" when he spoke).

74 Hess, 414 U.S. at 108.75 See GREENAWALT, supra note 73, at 209 (stating that Hess' interpretation of

imminence "is very restrictive"); Rohr, supra note 28, at 18-19 (" [I]n Hess, the Courtdid appear to require that the interval between speech and called-for response mustbe quite brief.").

76 See infra Part V.C.77 458 U.S. 886 (1982).

78 See id. at 934.

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against blacks who violated the boycott. 79 The plaintiffs argued thatEvers had encouraged violence against boycott breakers and shouldthus be liable for their losses.8 0 The Court disagreed: "This Court hasmade clear.., that mere advocacy of the use of force or violence doesnot remove speech from the protection of the First Amendment."81 Itthen quoted the Brandenburg test and concluded that Evers' state-ments were protected because no violence occurred until "weeks ormonths" after his speech.82

Claiborne Hardware does not reveal much about the meaning ofBrandenburg. For one thing, it is not clear that Brandenburg was thecorrect test to apply. Evers never advocated unlawful conduct;instead, he threatened residents who violated the boycott.8 3 In addi-tion, the Court did not indicate how soon the violence would have tooccur for Evers to be held liable. But the decision nonetheless reaf-firmed that Brandenburg is good law and that advocacy of future vio-lence is protected speech.

And that's it. In the twenty-six years since Claiborne Hardware, theCourt has not decided another case that required application of Bran-denburg. In part, this is because national politics were relatively calmduring the 1980s and 90s. The demise of the Soviet Union broughtan end to the Cold War, and the radicalism of the civil rights era sub-sided. But the lack of decisions applying Brandenburg also reflects thefact that the Court and legal scholars have turned their attention toother First Amendment issues, such as commercial speech, campaignfinance regulation, and emerging media. As a result, the Court'sunderstanding of Brandenburg remains largely undeveloped.

B. Brandenburg in the Lower Courts

The lower courts, on the other hand, have been more active.Unlike the Supreme Court, they do not have the luxury of choosingtheir cases. So while the Justices have focused on other speech issues,the lower courts have decided many cases raising issues underBrandenburg.

In a recent article, Marc Rohr grouped these cases into four cate-gories.8 4 First are criminal prosecutions for solicitation, conspiracy, or

79 Id. at 902, 926.80 Id.81 Id. at 927.82 Id. at 928.83 See infra notes 89-92 and accompanying text (discussing the difference

between the treatment of threats and criminal advocacy).84 See Rohr, supra note 28, at 25.

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threats to commit crimes.85 Second are "imitation" or "copycat" cases,in which the plaintiff claims he was injured as a result of acts inspiredby the defendant's speech.8 6 Third are tax fraud cases in which thedefendant is charged with aiding and assisting in the preparation offraudulent tax returns.8 7 And fourth are civil cases in which defend-ants are sued for publishing instructions on how to commit crimes.88

Rohr thoroughly analyzed the cases in each category and I will notduplicate his work here. Instead, I will highlight some of the themesthat emerge from these cases and consider what they reveal about theadequacy of Brandenburg's protections.

The most prominent theme is that Brandenburg has been limitedto advocacy of unlawful conduct and has not been applied to relatedcategories of speech, such as threats, solicitations, criminal instruc-tions, or words amounting to conspiracy. For instance, lower courtshave concluded that the First Amendment does not protect the mak-ing of threats regardless of whether the threatened action is to occurimminently or in the future. 89 Likewise, lower courts agree that theFirst Amendment does not protect criminal conspiracies. Eventhough an agreement to violate the law may take the form of words,courts have held that Brandenburgs imminence and likelihoodrequirements do not apply.90

For the most part, these decisions are unobjectionable. Asexplained more fully in Part III, there is a strong argument thatthreats, offers of inducement, and words of agreement are ways ofdoing things, not of saying things, and thus do not further the under-lying values of free speech.9 1 Moreover, the Supreme Court has neversuggested that these categories of speech are entitled to the protec-

85 Id. at 26-29.86 Id. at 29-32.87 Id. at 32-39.88 Id. at 39-46.89 See, e.g., White v. Lee, 227 F.3d 1214, 1230 (9th Cir. 2000) ("Threats of violence

and other forms of coercion and intimidation directed against individuals or groupsare, however, not advocacy, and are subject to regulation or prohibition."); UnitedStates v. Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985) (upholding a provision of theVictim and Witness Protection Act prohibiting threats against government informantsagainst First Amendment challenge).

90 See, e.g., United States v. Rahman, 189 F.3d 88, 114-16 (2d Cir. 1999) (findingthat the seditious conspiracy statute did not violate First Amendment because it onlyproscribed speech when it constituted an agreement to use force against the UnitedStates); United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir. 1990) (finding speechor writing employed in connection with participation in alleged conspiracy not pro-tected by First Amendment).

91 See infra notes 258-72 and accompanying text.

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tions of Brandenburg. In fact, the Court has made clear that threats

are outside the coverage of the First Amendment altogether.9 2

But some decisions applying these principles have reached ques-

tionable results. Consider United States v. Rahman,93 which upheld the

conviction of Omar Abdel Rahman,9 4 also known as the Blind Sheik.

Rahman was one of ten Muslims charged with seditious conspiracy

and other crimes for plotting a campaign of terrorism in the early1990s.9 5 At trial, prosecutors argued that Rahman was the leader of

the conspiracy and had induced the other men to carry out his

wishes.9 6 As support, they introduced evidence that he had advocated

attacks against the United States, had issued fatwas approving specific

acts of violence, and had encouraged the men to receive military

training.9 7 A jury convicted him on all counts, and he was sentenced

to life in prison.98

Because he was convicted on the basis of speech, Rahman argued

that his conviction violated the First Amendment.9 9 The Second Cir-

cuit rejected this argument, stating that criminal conspiracies are not

protected simply because they are formed through words.10 0 It also

distinguished Rahman's case from Dennis and later decisions, stating

that to be convicted of seditious conspiracy, "one must conspire to use

force, not just to advocate the use of force.''

But although the court treated Rahman's case as one involving

conspiracy, not advocacy, much of the evidence it relied on consisted

of the latter. For instance, in upholding his conviction for conspiracy

to murder Egyptian President Hosni Mubarak, the court pointed to

evidence that Rahman urged several of the men to commit the act.10 2

And in upholding his conviction for a bombing conspiracy, the court

noted that he described the bombing campaign to the men as a

"duty."'1 3 Perhaps there was enough evidence without these state-

ments to uphold the conspiracy convictions. But the court did not

92 Virginia v. Black, 538 U.S. 343, 359 (2003) ("[T]he First Amendment also per-mits a State to ban a 'true threat."' (quoting Watts v. United States, 394 U.S. 705, 708(1969) (per curiam))).

93 189 F.3d 88.94 See id. at 103.95 Id. at 103-05.96 Id. at 104.97 Id.98 Id. at 111.99 Id. at 114.

100 See id. at 114-15.101 Id. at 115.102 See id. at 117.103 Id. at 125.

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acknowledge that it was relying largely upon advocacy to support aconviction for conspiracy.

Moreover, the court upheld his conviction on two counts thatarguably should have been subjected to the Brandenburg test. In thosecounts, Rahman was charged with violating 18 U.S.C. § 373, whichmakes it unlawful to "'solicit[], command[], induce[], or otherwiseendeavor[] to persuade"' another person to engage in a crime of vio-lence. 10 4 The government argued that Rahman violated this law byurging the assassination of Mubarak and attacks on U.S. militarybases. 1

05 Because there was no evidence that Rahman had com-

manded these crimes, it seems likely that he was convicted of inducingor persuading others to commit them instead.1 0 6 Therefore, the Bran-denburg test was applicable. Yet the court did not consider whether hisstatements were directed to inciting imminent unlawful conduct orwere likely to lead to such conduct. Instead it simply stated that"[w] ords of this nature-ones that instruct, solicit, or persuade othersto commit crimes of violence-violate the law and may be properlyprosecuted regardless of whether they are uttered in private, or in apublic speech, or in administering the duties of a religious minis-try."10 7 This is a clear misstatement of Brandenburg, which permitspunishment for words of persuasion only upon a showing of immi-nence and likelihood. 10 8

The lower courts' treatment of criminal instruction has also beenquestionable. Criminal instruction differs from criminal advocacy inthat the speaker instructs or teaches others how to commit crimeinstead of, or in addition to, encouraging them to do so. 10 9 TheSupreme Court has never addressed this type of speech, so it isunclear what level of protection it receives." 0 But a majority of lowercourts to consider the issue have held that it is not protected by Bran-denburg. In United States v. Buttorff1 I for instance, the Eighth Circuitupheld the conviction of defendants who had explained to a group offactory workers how to avoid paying income taxes. 112 Although the

104 Id. at 117 (alterations in original) (quoting 18 U.S.C. § 373(a) (2006)).105 Id. at 126.106 See id. at 108 (showing that Rahman urged a United Nations complex bombing

but was "insulated" from active control of a plot).107 Id. at 117.108 See supra Part I.A.109 See Volokh, supra note 34, at 1107.110 But see Stewart v. McCoy, 537 U.S. 993, 995 (2002) (Stevens, J., concurring in

denial of certiorari) (stating that "speech that performs a teaching function" shouldnot be "glibly characterized as mere 'advocacy'").

111 572 F.2d 619 (8th Cir. 1978).112 See id. at 628.

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court acknowledged that Brandenburg protects "speech which merelyadvocates law violation," it concluded that the defendants had gonefurther: "[T]hey explained how to avoid withholding and theirspeeches and explanations incited several individuals to activity thatviolated federal law and had the potential of substantially hinderingthe administration of the revenue." I l3

In addition to limiting the reach of Brandenburg, most lowercourts have mischaracterized its holding. In United States v. Kelley, 114

the defendant appealed his conviction for aiding and abetting taxfraud, arguing that his advice to taxpayers was protected speech. 115

The Fourth Circuit rejected this argument, noting that the defendanthad been paid for his advice and had provided forms to his clients."16

The court could have stopped there, relying on Buttorff But it addedthat the First Amendment "lends no protection to speech which urgesthe listeners to commit violations of current law."' 1 7 This statementwas followed by a citation to Brandenburg and the following descrip-tion of the defendant's speech: "It was no theoretical discussion ofnon-compliance with laws; action was urged; the advice was heeded,and false forms were filed."" l8 Nowhere did the court mention Bran-denburg's requirement of imminence.119

The Seventh Circuit also misread Brandenburg in United States v.Kaun.120 There, the district court had enjoined the defendant from

113 Id. at 624; see also Rice v. Paladin Enters., 128 F.3d 233, 249-50 (4th Cir. 1997)(holding that First Amendment did not protect publisher of "Hit Man" instructionbook in suit for civil damages); United States v. Daly, 756 F.2d 1076, 1082 (5th Cir.1985) (upholding a conviction for tax fraud, because, despite not inspiring "immi-nent" lawless action, defendant advocated and assisted in the preparation of falseforms); United States v. Moss, 604 F.2d 569, 571 (8th Cir. 1979) (upholding convic-tion for aiding and abetting tax fraud because defendant went beyond advocacy andexplained how to avoid withholding of taxes). But see United States v. Dahlstrom, 713F.2d 1423, 1428 (9th Cir. 1983) (reversing convictions for aiding and assisting taxfraud because "[n]othing in the record indicates that the advocacy practiced by thesedefendants contemplated imminent lawless action"); United States v. Freeman, 761F.2d 549, 552-53 (9th Cir. 1982) (reversing convictions because the trial court did notgive a First Amendment instruction and the jury could have found that defendantsimply criticized tax laws without urging imminent violation of those laws).114 769 F.2d 215 (4th Cir. 1985).115 Id. at 216-17.116 See id. at 217.117 Id. o

118 Id.119 See also United States v. Fleschner, 98 F.3d 155, 158 (4th Cir. 1996) (reading

Brandenburg to provide no protection for "'speech which urges the listener to commitviolations of current law'" (quoting Kelley, 769 F.2d at 217)).120 827 F.2d 1144 (7th Cir. 1987).

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encouraging others to file false tax returns or selling materials underthe guise of tax advice.' 21 In response to the defendant's FirstAmendment claim, the appeals court interpreted the injunction nar-rowly so as not to prohibit all discussion of tax policy. 122 But, afterquoting Brandenburg, it held that the defendant could be enjoined ifhe "actually persuaded others, directly or indirectly, to violate the taxlaws, or if the evidence shows that Kaun's words and actions weredirected toward such persuasion in a situation where the unlawfulconduct was imminently likely to occur."'123 Although the court cor-rectly required a showing of imminence in the second half of its for-mulation, it omitted this requirement in the first half.124 As a result,the defendant could be punished if he successfully encouraged othersto violate the tax laws, even if he did not urge that violationimminently.

125

At least one lower court has also interpreted the imminencerequirement quite loosely. In People v. Rubin,126 the national directorof the Jewish Defense League was charged with solicitation to murderafter offering $500 for attacks against Nazis. 127 The offer was madeduring a press conference to protest the planned march of the NaziParty through Skokie, Illinois, a largely Jewish community. 28 Afterannouncing plans for a counter-demonstration, the director held upfive $100 bills and offered them to any person who "kills, maims, orseriously injures a member of the American Nazi Party."129 "And ifthey bring us the ears," he added, "we'll make it a thousand dollars.The fact of the matter is, that we're deadly serious. This is not said injest, we are deadly serious."'130

The trial court ruled that the defendant's speech was pro-tected, 31 but the California appeals court reversed. 32 After identify-ing Brandenburg as the applicable test,'33 the court held that the

121 Id. at 1146.122 See id. at 1150-52.123 Id. at 1151-52.124 See id.125 See id. at 1149; see also United States v. Raymond, 228 F.3d 804, 815 (7th Cir.

2000) (following Kaun).126 158 Cal. Rptr. 488 (Cal. Ct. App. 1979).127 Id. at 488-89.128 Id.129 Id. at 488.130 Id. at 488-89.131 Id. at 490.132 Id. at 494.133 Id. at 492. The court might have avoided Brandenburg altogether by conclud-

ing, as other courts have, that it does not protect offers to engage in unlawful con-

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defendant's speech was directed to inciting imminent lawless actioneven though the Skokie march was five weeks away. Imminence is afunction of time, the court said.' 34 "But time is a relative dimensionand imminence a relative term, and the imminence of an event isrelated to its nature. A total eclipse of the sun next year is said to beimminent. An April shower thirty minutes away is not. ' 135 The courtthen concluded that, given the seriousness of the crime, the immi-nence requirement had been satisfied. "We think solicitation of mur-der in connection with a public event of this notoriety, even thoughfive weeks away, can qualify as incitement to imminent lawlessaction."136

As these cases show, the lower courts' treatment of Brandenburghas not been reassuring. Many courts have been willing to limit itsprotections to abstract advocacy, and many others have misunder-stood its requirements. Yet with the exception of Rahman, few ofthese cases involved speech threatening to national security. Whichraises an important question: if Brandenburg can be circumvented incases involving tax fraud, is it strong enough to protect unpopularspeech in the current climate?

C. The al-Timimi Case

The conviction of Ali al-Timimi may provide a tentative answer.A1-Timimi is an American citizen who was born in Washington, D.C.in 1963.137 His parents had moved from Baghdad one year earlier,and his father worked as a lawyer in the Iraqi embassy. 138 Althoughhis parents were committed Muslims, al-Timimi attended secularschools and knew little about his faith until the family moved to SaudiArabia when he was fifteen.139 There, he studied the Qu'ran, learnedIslamic law, and embraced Salafiya, a fundamentalist strain ofIslam. 140 He returned to the United States for college, but continuedhis Islamic studies and moved back to Saudi Arabia for a year in his

duct. See, e.g., Christensen v. State, 468 S.E.2d 188, 190 (Ga. 1996) (holding that astatute preventing solicitation of sodomy is valid under Brandenburg); State v. Neal,500 So. 2d 374, 377-78 (La. 1987) (reversing decision of lower court that solicitationof prostitution was protected speech under Brandenburg).134 Rubin, 158 Cal. Rptr. at 492.135 Id.136 Id. at 493.137 See Milton Viorst, The Education of Ali al-Timimi, ATL. MONTHLY, June 2006, at

68, 69.138 Id. at 69.139 Id. at 69-72.140 Id. at 69, 72.

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mid-twenties.1 41 He eventually settled with his wife in Fairfax, Vir-ginia, where he worked as a computer programmer by day and pur-sued a doctorate in computational biology by night.142 At the time ofhis trial, he had just completed his dissertation, "Chaos and Complex-ity in Cancer."143

The charges against al-Timimi grew out of a larger investigationinto a group of Muslims referred to by the government as the "Vir-ginia Jihad Network." 144 According to testimony at al-Timimi'strial,145 this group of about a dozen men began playing paintball inthe woods of Northern Virginia in early 2000.146 Their goal was todevelop military skills in case they were needed by the mujahideen inplaces such as Kashmir and Chechnya. 147 They created a paintballwebsite to communicate with each other, watched videos of attacks onRussian forces, and purchased guns that they fired at a local range. 148

At least two of the men had also received training at a Pakistani camprun by Lashkar-e-Taiba (LET), a military group initially formed tocombat the Russians in Afghanistan but now dedicated primarily todriving India out of Kashmir. 149

Al-Timimi did not participate in these activities, but knew themen who did.150 They attended a mosque in Falls Church where helectured, and they apparently looked up to him. At one point, one ofthe men asked al-Timimi what he thought of their paintball games.He replied that they were a good idea.151 Later, after the FBI ques-tioned one of the paintballers, two others asked al-Timimi foradvice.' 52 After they assured him they had not broken any laws, he

141 Id. at 72.

142 Id. at 73.

143 Id. at 72-73.

144 Id. at 76-78.145 The following account is based on witness testimony at al-Timimi's trial, as

described and quoted in post-trial briefs. The trial transcript is not included in pub-licly available court files, and the cost of obtaining a copy from the court reporter wasprohibitive. In addition, there is no court opinion. Thus, I am relying upon theaccuracy and completeness of the accounts provided by the prosecution and defensein their filings. Where witness testimony conflicts, I describe the facts in the lightmost favorable to the prosecution.146 Defendant's Motion for Judgment of Acquittal, supra note 16, at 2.147 Id.

148 Id. at 4, 6-8.149 Id. at 9-10.150 Id. at 2-12.151 Id. at 4-5.152 Id. at5

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said they should keep playing so as not to look suspicious. 15 3 But healso suggested they play soccer instead.1 54

On the night of 9/11, al-Timimi attended a previously scheduleddinner in honor of the mosque's founder. 55 During a discussion ofthe attacks, he argued that although they were caused by Americanforeign policy they were not justified under Islamic law.156 He alsowarned those present to be careful of anti-Muslim violence and pre-dicted it would no longer be safe to preach Islam in the UnitedStates.157 After dinner, he was given a ride home byYong Ki Kwon, apaintballer who had also attended the meal. 158 Al-Timimi told Kwonthat he and his friends should make plans to protect themselves in theevent of a backlash against Muslims. 1 59 He suggested they storecanned food and water in their cars and drive to the mountains ifviolence erupted. 160 He also suggested that Kwon return to his nativeKorea to avoid paying taxes to the United States. 16 1

Five days later, on September 16, Kwon invited the paintballers todinner at his house to discuss al-Timimi's suggestions. 62 A1-Timimiwas not invited, but he called Kwon as the latter was picking up foodand they agreed that he would join the group. 63 At some point in theevening, al-Timimi told Kwon to unplug the phone and close theblinds.164 He also told the men that the meeting was an amana-ortrust-and that they should not repeat what was said.' 65 Then, inresponse to a series of questions, al-Timimi told the men they shouldleave America and join the mujahideen's fight against the enemies ofIslam.' 66 When asked about Afghanistan, which the United States wasthreatening to invade, he read the men a fatwa that had been issuedby a Saudi scholar. 167 The fatwa declared that all Muslims were obli-gated to help defend Afghanistan against the United States. 168 The

153 Id.154 Id.155 Id. at 17.156 Id.157 Id. at 17-18.158 Id. at 18.159 Id.160 Id. at 19.161 Id. at 18-19.162 Id. at 20.163 Id. at 21.164 Id. at 22-24.165 Id. at 24.166 Id. at 25.167 Id. at 31.168 Id.

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men then discussed where they could receive military training, andone of them mentioned LET. 169 AI-Timimi said LET was on the rightpath and encouraged the men to train there. 170

A1-Timimi left after about two hours, and the men continuedtheir discussion. 17 1 One of the paintballers already had plans to travelto Pakistan in a few days to pick up his wife and children, 172 and threeothers decided to join him.173 Over the next few days, they boughttickets and arranged for visas. 174 Two of the men left on September19, but the other two were not scheduled to leave until September 20.They had not spoken to al-Timimi since the dinner, so they met himfor lunch. 175 They told him they were leaving for Pakistan the nextday to train at LET. 176 Al-Timimi warned them to be careful and notto carry anything suspicious. 177 He also said they should travelapart 178 and, if stopped by the police, should act scared and ask fortheir mothers. 179

Once in Pakistan, the men spent several weeks sightseeing, shop-ping, and visiting family.'80 They then traveled to LET, where theytrained to fire AK-47s, machine guns, and rocket-propelled gre-nades.'"" They left after a few weeks, however, in part because ofboredom and in part because the border to Afghanistan had beenclosed. One of the men briefly sold mangoes in Pakistan,182 but even-tually all four returned to the United States.'83

A year and a half later, they and the other paintballers wereindicted on multiple charges, including conspiracy to levy war againstthe United States and its allies, attempting to aid the Taliban, andusing firearms and explosives in furtherance of a crime of violence. 18 4

Four were convicted after jury trials, two were acquitted, and sixpleaded guilty and agreed to cooperate in exchange for lesser

169 Id. at 34.170 Id.171 Id. at 38.172 Id. at 34.173 Id. at 36,174 Id. at 39-40.175 Id. at 40.176 Id.177 Id. at 41.178 Id. at 40-41.179 Id. at 40.180 Id. at 42.181 Id. at 42-43.182 See Barakat, Holy War, supra note 20.183 See Barakat, Trial Attack, supra note 20.184 See United States v. Khan, 309 F. Supp. 2d 789, 796 (E.D. Va. 2004).

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sentences.18 5 In September 2004, al-Timimi also was charged, but notas a co-conspirator. Instead, he was charged with one count of coun-seling and inducing the others to form a conspiracy, eight counts ofcounseling and inducing them to commit various offenses, and onecount of attempting to contribute services to the Taliban. 1 6 Three ofthe paintballers testified against him, 8 7 and he was found guilty by ajury on all counts.188

After his conviction, al-Timimi's lawyers moved for acquittal anda new trial.18 9 They argued that the evidence was misstated and thatprosecutors had made inappropriate comments about Islam to thejury.190 They also argued that his conviction violated the First Amend-ment since it rested entirely on speech. 19 1 The judge rejected thisargument from the bench, declaring it "unpersuasive." 19 2 She thensentenced al-Timimi to life in prison plus seventy years, describing thesentence as "very draconian" but nonetheless required by the sentenc-ing guidelines.1

93

Because the judge did not write an opinion, it is unclear why shefound al-Timimi's First Amendment claim unpersuasive. Whateverthe reason, her conclusion is doubtful. Nine of the ten countscharged al-Timimi with advocating unlawful conduct, which makesBrandenburg applicable. Yet there was little evidence to satisfy itsrequirements. For one thing, it is not clear that al-Timimi's wordswere directed to producing lawless conduct. At the time of the din-ner, LET had not been declared a terrorist organization by the UnitedStates, and it was legal for Americans to travel there. 19 4 In addition,al-Timimi did not counsel the men to fight against the United Statesin Afghanistan. He simply read them a fatwa that had been issued bya Saudi scholar. 19 5

185 See id.

186 See Defendant's Motion for Judgment of Acquittal, supra note 16, at 47-59.

187 See id. at 4-6.

188 See supra note 25 and accompanying text.

189 See Defendant's Motion forJudgment of Acquittal, supra note 16; Defendant'sCorrected Motion for a New Trial, United States v. Al-Timimi, No. 1:04-cr-385 (E.D.Va. July 13, 2005).

190 See Defendant's Corrected Motion for a New Trial, supra note 189, at 2.

191 See Defendant's Motion for Judgment of Acquittal, supra note 16, at 43-46.

192 See Lichtblau, supra note 25.

193 See id.

194 See Paul Bradley, Muslim Cleric UrgedJihad, Says Witness, RICHMOND TiMES-Dis-PATCH, Apr. 5, 2005, at Al.195 Defendant's Motion for Judgment of Acquittal, supra note 16, at 31.

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Of course, the jury found him guilty of counseling unlawful con-duct, so the judge may have felt bound by its determination. 196 Buteven conceding that point, there was no evidence his words weredirected to inciting imminent lawless conduct. A1-Timimi never toldthe men when they should join the jihad or levy war against theUnited States. And at the time of the dinner, the United States hadnot yet begun hostilities in Afghanistan. It was not until four dayslater, on September 20, that President Bush delivered his ultimatumto the Taliban. 9 7 And it was not until three weeks later, on October7, that the United States' bombing campaign began. 198 Thus, therewas nothing to suggest that al-Timimi's speech was directed to incitingimminent lawless conduct. As the Court stated in Hess, "at worst, itamounted to nothing more than advocacy of illegal action at someindefinite future time." 199

It is also not clear that al-Timimi's speech was likely to inciteimminent lawless conduct. Joining the mujahideen is not somethingone does on the spot, like storming the street or burning a draft card.It takes planning and a long flight to a Muslim country. Even in thiscase, the men did not arrive at the LET camp until several weeks afterthe dinner.200 And of course, they never actually levied war againstthe United States or aided the Taliban, actions that likely would havetaken more time to carry out.

In its response to al-Timimi's motion, the government offeredseveral counterarguments. First, it claimed that al-Timimi's case wasidentical to that of Abdel Rahman, the blind Sheik convicted of sedi-tious conspiracy.201 But there is a significant difference between thetwo cases. Rahman was charged with conspiracy, not advocacy.20 2 Al-Timimi, by contrast, was charged with advocacy, almost certainlybecause there was no evidence that he joined the conspiracy. Thisdifference is not technical. As alluded to above and explained morefully below, there is a strong argument that words of conspiracy are

196 This would itself be an error since the Supreme Court has held that a courtmust review the jury's determination where a defendant is punished on the basis ofspeech. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 285 (1964).

197 See Bumiller, supra note 21.198 See Patrick E. Tyler, U.S. and Britain Strike Afghanistan, Aiming at Bases and Ter-

rorist Camps; Bush Warns 'Taliban Will Pay a Price, 'N.Y. TIMES, Oct. 8, 2001, at Al.199 Hess v. Indiana, 414 U.S. 105, 108 (1973) (per curiam).200 See supra notes 180-81 and accompanying text.201 See Government's Response to Defendant's Post-Trial Motions at 3-4, United

States v. Al-Timimi, No. 1:04-cr-385 (E.D. Va. July 13, 2005).202 Government's Response to Defendant's Post-Trial Motions, supra note 201, at

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not protected because they are "situation-altering utterances. '" 203

Words of encouragement are not situation-altering utterances, how-ever, and are therefore entitled to First Amendment protection. 20 4

The government also argued that although it took the men threedays to leave for Pakistan, they left as soon as possible. 20 5 The implica-tion is that because they could not have acted more quickly the immi-nence requirement was met. But this misapprehends the rationalebehind the imminence requirement. The question is not how quicklythe crime can be committed, but whether there is time for counter-speech, deliberation, or police intervention to prevent the crime fromoccurring. 20 6 Thus, if a speaker advocates a crime that cannot becommitted for sixty days, it is irrelevant that a listener commits thecrime on the sixtieth day. What matters is that there was time forcounterspeech, deliberation, and police intervention before the com-mission of the crime.

Finally, although the government does not do so in its brief, thegovernment might argue that the imminence requirement was metbecause the men conspired to commit their crimes immediately afteral-Timimi's speech. In other words, the government might argue thatas long as the conspiracy is likely to begin immediately, the immi-nence requirement is satisfied even if the substantive crime is notlikely to be committed until later. But only one of the counts againstal-Timimi charged him with encouraging conspiracy; the other countscharged him with encouraging substantive crimes. 20 7 Moreover,accepting this argument would seriously undermine Brandenburg.Almost any speaker who advocates unlawful conduct can be viewed asalso advocating a conspiracy to commit unlawful conduct. Andbecause listeners can form conspiracies far more quickly than they cancommit the underlying crime, the government could gut Branden-burg's requirements by simply charging speakers with advocatingconspiracy.

The bottom line is that under a careful application of Branden-burg, al-Timimi's speech should have been protected. And yet a fed-eral judge rejected his free speech claim without even writing anopinion. One might suggest that his case is an aberration and thatBrandenburg will prove sturdier in the future. But his case at leastdemonstrates that Brandenburg is subject to backsliding during times

203 See infra notes 251-65 and accompanying text.204 See infra notes 266-89 and accompanying text.205 See Government's Response to Defendant's Post-Trial Motions, supra note 201,

at 31.206 See infra Part IV.B.207 See supra note 186 and accompanying text.

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of crisis and insecurity. Prosecutors played heavily on fears of terror-ism throughout the trial, comparing al-Timimi to Osama binLaden.2 08 The judge should have ignored such rhetoric and focusedon the facts and law, but it would not be surprising if she succumbedto the same fears that have gripped much of the country over the pastseven years.

The case also highlights many of the ambiguities of the Branden-burg test. Although I argue that al-Timimi's speech should be pro-tected under a careful application of the test, it nonetheless raisesnumerous questions about Brandenburg that have never been resolved.For instance, what does imminence mean? Does it mean within a fewhours, as arguably implied by Hess v. Indiana, or does it indicate alonger time frame? Is imminence a relative term that depends on thenature of the event, so that "a total eclipse of the sun next year is saidto be imminent," while "[a]n April shower thirty minutes away isnot"?20 9 How likely must it be that the harm will occur? More likelythan not or only somewhat likely? And how broad is Brandenburg'sreach? Does it cover all advocacy, including private encouragement tocommit ordinary crimes, or only public advocacy that appeals to ideo-logical commitments? Does it apply during war as well as peace? Doesit overrule Dennis v. United States, or might a court analogize the threatof terrorism to the communist threat of the 1950s? Might a court goeven further and conclude that the current threat is so serious thatBrandenbur's protections do not apply at all to speech that encour-ages acts of terrorism?

These are important questions that go to the heart of the Bran-denburg test. Moreover, they are questions that must be answeredbefore Brandenburg can fulfill its promise of providing strong protec-tion for unpopular speech. The history of the First Amendment isfilled with cases in which courts failed to protect speech during peri-ods of crisis. Perhaps this is inevitable and no test can substitute forreasoned judgment. But it also seems likely that uncertainty about theappropriate standard is part of the problem. With no clear standardto guide them, courts can too easily revert to ad hoc balancing inwhich they weigh the costs of speech against its benefits. And becausethe costs are usually more tangible than the benefits, courts are likelyto suppress some speech that deserves protection. It is thereforeimportant to resolve the ambiguities of Brandenburg so that courts willhave less discretion to act on their repressive inclinations.

208 See Defendant's Corrected Motion for a New Trial, supra note 189, at 7.209 People v. Rubin, 158 Cal. Rptr. 488, 492 (Cal. Ct. App. 1979).

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Before doing so, however, there are two larger questions thatmust be answered: Why should criminal advocacy be protected in thefirst place? And assuming it should be protected, why is Brandenburgthe correct test? I address these questions in Parts II and III. Part IVthen attempts to fill in the gaps of the Brandenburg framework.

II. WHY SHOULD CRIMINAL ADVOCACY BE PROTECTED?

Any effort to determine the appropriate level of protection foradvocacy of unlawful conduct must confront a threshold issue, whichis why such speech should receive any protection. After all, if govern-ment can criminalize a particular act, why should it be forbidden frompunishing speech that encourages the commission of that act? Com-mon sense suggests that encouragement of an act makes it more likelythat the act will occur. 210 And even if encouragement does notincrease the likelihood, it is hard to sympathize with someone whourges others to break the law. As Abraham Lincoln asked, "'Must Ishoot a simple-minded soldier boy who deserts, while I must not toucha hair of a wily agitator who induces him to desert?"' 211

Among those who would answer yes, there are several theories forwhy such speech should be protected. Thomas Scanlon hasattempted to ground protection in Kantian notions of autonomy,arguing that autonomous individuals could not "regard themselves asbeing under an 'obligation' to believe the decrees of the state to becorrect, nor could they concede to the state the right to have itsdecrees obeyed without deliberation. '" 212 Sheldon Leader has invokedsocial contract theory, asserting that no rational individual wouldagree to be kept ignorant of reasons for thinking that governmenthad broken the social contract by passing unjust laws. 213 And T.R.S.Allan has argued that protection for criminal advocacy is mandated by

210 See Alexander, supra note 27, at 101 (noting that because people often act onthe reasons provided by others, "[ilt therefore is plausible to assume that limiting thecommunication of certain ideas may decrease the incidence of violent and insurrec-tionary acts").

211 Geoffrey R. Stone, Abraham Lincoln's First Amendment, 78 N.Y.U. L. REV. 1, 19(2003) (quoting Letter from Abraham Lincoln to Erastus Corning and Others (June12, 1863), in ABRAHAM LINCOLN, SPEECHES AND WRITINGS, 1859-1865, at 454, 460(Don E. Fehrenbacher ed., 1989)).

212 Thomas Scanlon, A Theory of Freedom of Expression, I PHIL. & PUB. AFF. 204, 217(1972).213 See Sheldon L. Leader, Free Speech and the Advocacy of Illegal Action in Law and

Political Theory, 82 COLUM. L. REx,. 412, 423-24 (1982).

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the rule of law, which, he says, gives each individual the right to resistlaws that conflict with his own sense of moral obligations. 214

Although intriguing, each of these theories has weaknesses.Scanlon's theory overlooks the possibility that individuals enteringinto the social contract might agree to give up some autonomy inexchange for a more stable society.2 15 Leader sidesteps that objectionby arguing that no rational individual would enter into a contractunder which he could be kept ignorant of arguments that the contracthad been broken. But there is a difference between arguments thatthe contract has been broken and arguments that the law shouldtherefore be violated, and Leader does not adequately explain why arational person would insist on hearing the latter. If one thoughtfreedom to advocate unlawful conduct would cause sufficient instabil-ity, he might agree to be kept ignorant of such arguments, and wewould be hard pressed to call him irrational. Finally, Allan avoidsdebate about the social contract, but relies upon the dubious assertionthat the rule of law gives each individual the right to decide for him-self which laws are legitimate and should be obeyed. This assertionruns counter to the prevailing view of justice, which is that citizensmust generally accept and support reasonably just political institutionsregardless of their personal and moral views.216

If these theories do not adequately explain why criminal advocacyshould be protected, how can we justify such protection? I think themost persuasive justification is rooted in the values served by a princi-ple of free speech. 21 7 Scholars have identified a number of valuesunderlying free speech, but three have received particular atten-tion. 218 First, free speech is said to promote the search for truth.219

214 See T.R.S. Allan, Citizenship and Obligation: Civil Disobedience and Civil Dissent, 55CAMBRIDGE L.J. 89, 93-94, 112-13 (1996).215 See Robert Amdur, Scanlon on Freedom of Expression, 9 PHIL. & PUB. Aer. 287,

298-300 (1980). Scanlon subsequently accepted Amdur's criticism and retreatedfrom his initial position. See T.M. Scanlon, Jr., Freedom of Expression and Categories of

Expression, 40 U. Purr. L. REv. 519, 532-34 (1979).

216 See JOHN RAWLS, A THEORY OF JUSTICE 99 (rev. ed. 1999).

217 In taking this approach, I follow the example of Kent Greenawalt, who hasexamined the relationship between free speech and criminal law in terms of theunderlying justifications for free speech. See GREENAWALT, supra note 73. I reachmany of the same conclusions about criminal advocacy as Greenawalt, though, as willbe seen, I believe it is more closely tied to the underlying justifications for free speech

than he does. See infra Part III.A.218 See KATHLEEN M. SULLIAN & GERALD GUNTHER, FIRST AMENDMENT LAW 4-7 (3d

ed. 2007).

219 For classic statements of the truth-seeking justification, see Whitney v. Califor-nia, 274 U.S. 357, 375-77 (1927) (Brandeis,J., concurring); Abrams v. United States,

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By forbidding the government from shutting off debate on particulartopics or disfavoring particular viewpoints, freedom of speech createsa "marketplace of ideas" in which received opinion can be challengedand put to the test. Second, free speech promotes the self-govern-ment that is essential to a well-functioning democracy. 220 It enablesindividuals to discuss policies openly and ensures that they have accessto information they need to make political and personal choices.Finally, free speech contributes to the autonomy of the individual andenables him to engage in expression vital to his self-fulfillment. 221

If we accept that these values underlie the First Amendment, 222

we should provide at least some protection for any speech that fur-thers them. 223 And in most cases, advocacy of unlawful conduct fur-thers one or more of these values.224 Consider a speaker who says, "Iurge conscripts to resist military service because the draft is equivalentto slavery." This statement, though it advocates violation of the draftlaws, contributes to the search for truth about the moral and legalpropriety of the draft. It also promotes self-government because itcriticizes existing policy and gives listeners a reason to oppose thedraft and any candidates who support it. And, although the argument

250 U.S. 616, 630-31 (1919) (Holmes, J., dissenting); JoHN STUART MILL, ON LIBERTY78-110 (Michael B. Mathias ed., Pearson Educ. 2007) (1859); JOHN MILTON, ARE-OPAGITICA 25-33 (Richard C. Jebb ed., Cambridge Univ. Press 1918) (1644).220 The canonical treatment is ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELA-

TION TO SELF-GOVERNMENT (2000).221 See, e.g., C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 47 (1989);

REDISH, supra note 28, at 84; David A. Strauss, Persuasion, Autonomy, and Freedom ofExpression, 91 COLUM. L. REv. 334, 353-60 (1991). In addition to these values, schol-ars have argued that free speech provides a release valve for dissent, serves as a checkon the misuse of governmental power, and reflects a mistrust of government's abilityto decide which ideas are acceptable. See GREENAWALT, supra note 73, at 114. I focuson the three values discussed in the text because they are the most prominent, but myargument also applies to these additional values.222 Not everyone does, of course. Scholars have criticized each of these justifica-

tions, and to the extent one accepts their criticisms, my argument will carry lessweight. But these justifications are so entrenched in First Amendment theory that itmakes sense to use them as building blocks. In this way, my argument is foundational.And those who do not accept the foundation will not accept the analysis I build ontop of it.223 How much protection is a separate question that I consider in Part III. Here, I

am concerned with whether criminal advocacy is entitled to any protection. My dis-cussion thus tracks the familiar distinction in First Amendment law between issues ofcoverage and protection. See Frederick Schauer, The Boundaries of the First Amendment:A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1769 (2004).224 See GREENAWALT, supra note 73, at 114 ("[M]any of the justifications for free

speech apply with considerable force to urgings of crime and to urgings of criminalrevolutionary action.").

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is less compelling, the statement promotes the values of autonomyand self-fulfillment by giving the speaker a means of expressing hisviews.225

One might respond that a speaker could still further these valueswithout encouraging violations of the law. 226 In the example above,the speaker could criticize the draft without urging draftees to violatethe law (for example, "The draft is equivalent to slavery."). Thisabridged statement would still promote the search for truth about thedraft, criticize existing policy, and vent the speaker's feelings aboutthe draft. Therefore, there is no reason to permit him to encourageviolation of the draft laws.

I see three problems with this argument. First, encouraging viola-tions of the law may reflect the depth and intensity of the speaker'sbeliefs in a way that merely criticizing the law does not. By advocatingunlawful conduct, a speaker can signal to his listeners that he is seri-ous, that drastic measures are called for, and that the beliefs he isexpressing are worth going to jail to defend. 227 The Supreme Courthas recognized the value of such signals, stating that much verbalexpression "conveys not only ideas capable of relatively precise,detached explication, but otherwise inexpressible emotions aswell."228 It has also rejected the view that "the Constitution, whilesolicitous of the cognitive content of individual speech, has little or noregard for that emotive function which, practically speaking, mayoften be the more important element of the overall message sought tobe communicated. '229

Second, it is very difficult to draw a clear line between speech thatadvocates unlawful conduct and speech that simply justifies such con-

225 See REDISH, supra note 28, at 84. The argument is less compelling becausealmost any form of expression can be viewed as furthering a speaker's autonomy andself-fulfillment. A speaker who threatens someone can claim that doing so makes himfeel self-fulfilled, as can a person who perjures himself. At some point, however, thebenefits of self-fulfillment would seem too minor and subjective to justify the coststhat such speech imposes. See Volokh, supra note 34, at 1145 (suggesting that thereare limits to the self-expression justification).226 See STONE, supra note 6, at 405 (noting thatJudge Learned Hand "thought the

speaker should 'separate the wheat from the chaff" (quoting Letter from LearnedHand to Elliot Richardson (Feb. 29, 1925))).227 Of course, this latter point might be made even more forcefully if the govern-

ment could punish criminal advocacy, since the speaker would then be risking hisown freedom. But the issue here is whether encouraging people to violate the law hasany value over and above simple criticism of the law.228 Cohen v. California, 403 U.S. 15, 26 (1971) (reversing the defendant's convic-

tion for wearing a jacket reading "Fuck the Draft" in a Los Angeles courthouse).229 Id.

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duct or criticizes existing policy.230 The statement above provides agood example. If the speaker says, "I urge you to resist the draft," heis clearly advocating unlawful conduct. But what if he says, "The draftis morally unjust, and you have a moral duty to resist unjust laws"? Ishe encouraging violation of the law or simply explaining his view ofhis listeners' moral duties? Or what if he says, "The draft is theequivalent of slavery, and the government has no power to enslavemen"? These statements do not unequivocally advocate violation ofthe law, but their practical significance and effect may be the same.23 1

The government could address this problem by punishing onlyspeech that expressly urges law violation through words such as "Iencourage you to violate the law." But this would accomplish littlesince speakers would simply avoid these or similar words, while stillcommunicating the same point. As a result, courts would likely per-mit the government to punish any speech that might be interpreted asadvocating law violation, even if not explicitly. But this approachwould chill much valuable speech. Because speakers would not knowin advance how their speech would be interpreted, they likely wouldbe hesitant to use strong language to criticize the government or per-haps to criticize the government at all.232 This approach also wouldput too much discretion in the hands of prosecutors and juries, whomight use it to punish those who express unpopular views. 233

Third, although speakers sometimes can make their point simplyby criticizing existing policy, in some instances advocacy of unlawfulconduct is essential to the speaker's message. If two people are debat-ing the morality of the draft, an opponent of the draft can express hisviews fully by arguing that the draft is immoral. But if the issue iswhether people have a duty to resist the draft, mere criticism of the

230 See GREENAWALT, supra note 73, at 123.231 Learned Hand argued that a speaker crosses the line into advocacy when he

urges a listener "either that it is [in] his interest or his duty to" act. Masses Publ'g Co.v. Patten, 244 F. 535, 540 (S.D.N.Y. 1917), rev'd, 246 F. 24 (2d Cir. 1917). But Hand'sline was far from clear. For instance, he conceded that he would not protect MarcAntony's funeral oration even though it does not explicitly urge unlawful conduct.See David M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U. CHI. L.REv. 1205, 1237 n.166 (1983).232 See Dennis v. United States, 341 U.S. 494, 549 (1951) (Frankfurter, J., concur-

ring) ("Suppressing advocates of overthrow inevitably will also silence critics who donot advocate overthrow but fear that their criticism may be so construed.").233 See Thomas v. Collins, 323 U.S. 516, 535 (1945) ("[T]he supposedly clear-cut

distinction between discussion, laudation, general advocacy, and solicitation puts thespeaker in these circumstances wholly at the mercy of the varied understanding of hishearers and consequently of whatever inference may be drawn as to his intent andmeaning.").

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draft is not enough. A speaker who believes that draft resistance isrequired can only express his views by arguing just that. To prohibithim from doing so is to shut off one side of the debate.

One might acknowledge that advocacy of unlawful conduct isnecessary to this debate, but think the debate itself is unnecessary. Inother words, one might argue that there is no value in debatingwhether violation of the law is ever justified or required. In a societygoverned by the rule of law, obedience to the law is a given, not openfor discussion. But this argument presumes the truth of the very pro-position at issue: that law violation is never justified or necessary. Andone of the fundamental principles of free speech is that debate can-not be shut off on the presumption that we already know the truththat will emerge from that debate. 23 4

Denying the value of the debate also seems inconsistent with theprinciple of self-government. The premise of self-government is thatultimate authority rests with the people, not with elected officials.The people therefore must be free to discuss and criticize the acts ofelected officials. They also must be free to discuss whether the lawspassed by those officials are entitled to obedience. To see this point,imagine that ten castaways agree to establish a government to managetheir affairs until they are rescued. They decide to create a single leg-islature with three representatives elected from among the group.They also decide that whenever two of the three representatives agreeon a policy it will become law. At this point, the question ariseswhether all laws passed by the legislature must be obeyed regardless ofwhether they are sensible or just. A debate ensues in which one cas-taway argues that all laws properly enacted must be obeyed, while asecond argues that bad laws should be ignored. If a third castawaysuggested that the second castaway was forbidden from making thisargument, we would reject his suggestion outright. As an equal par-ticipant in the project of self-government, the second castaway is enti-tled to advocate the form of government he thinks best. And if hethinks the best form of government is one in which bad laws shouldbe ignored, he must be allowed to make that argument.

Now imagine that the other castaways disagree with him anddecide that all laws must be obeyed until they are changed. Does thesecond castaway lose his right to argue that bad laws should beignored? The answer is no. Self-government is a continuing enter-prise, not a one-time event. Therefore, although he must now obey alllaws or face the consequences, he retains the right to argue that bad

234 See, e.g., MILL, supra note 219, at 76-78.

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laws should be ignored. To deny him this right is to deny him theability to participate in the continuing project of self-government. 23 5

To put a more timely spin on the point, consider a recent essay byDaniel Ellsberg encouraging government officials to leak classifiedinformation about the Bush administration's plans for a possible waragainst Iran.236 Ellsberg, who was prosecuted for leaking the Penta-gon Papers in 1971, acknowledged that any official who followed hisencouragement could be sent to prison.237 But he urged officials notto be deterred by that possibility. Recounting his own experience, hespeculated that he might have prevented the escalation of the Viet-nam War had he gone public in 1964 rather than in 1971.238 He alsoargued that the Iraq War might have been prevented had insidersopposed to the war disclosed the basis for their opposition. 239 Withthe White House reportedly planning a war against Iran, Ellsbergargued, government officials are obligated to leak any informationthat might enlighten the public. "They owe us the truth," he wrote,"before the next war begins." 240

Ellsberg's essay clearly advocates unlawful conduct-the unautho-rized disclosure of classified documents. But it just as clearly furthersself-government. His argument is that the Bush administration can-not be trusted to level with the public about the need for, and likelyoutcome of, a war against Iran and that the only alternative is for con-scientious officials to share their knowledge with the public. This isthe essence of self-government: one citizen urging others to takeaction that will illuminate public debate on a matter of great impor-tance. To deny the value of Ellsberg's essay is to deny the people thepower to govern themselves.

Of course, not all criminal advocacy so directly furthers self-gov-ernment. If a speaker encourages others to smoke marijuana, his lis-teners are not likely to take action that illuminates public debate. Buteven this speaker contributes something to self-government. Heexpresses his view that marijuana should be legal and that the lawsprohibiting it should be disobeyed. And just as the castaway must be

235 To say that the castaway has a right to make the argument does not mean theright is absolute. As discussed in Part III.D, even fully protected speech can be pro-hibited when necessary to further a compelling governmental interest.236 Daniel Ellsberg, The Next War, HARPER'S MAc., Oct. 2006, at 7, 7-10.237 See id. at 10. Ellsberg's conviction was overturned on appeal, and the charges

against him were dropped because of prosecutorial misconduct. Robin Toner, WhenSecrets Are Passed to the Press, N.Y. TIMES, Oct. 20, 1985, at E4.238 See Ellsberg, supra note 236, at 7-8.239 See id. at 8-9.240 Id. at 10.

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permitted to encourage disobedience of bad laws, so must the advo-cate of pot smoking be permitted to urge violation of the drug laws.

III. How MUCH PROTECTION SHOULD CRIMINAL ADVOCACY RECEIVE?

Having established that criminal advocacy deserves at least someprotection, the next question is, "how much?" Should it receive fullFirst Amendment protection or some reduced level of protection?This is not an easy question to answer because the Supreme Court hasnever articulated a formula for determining how much protectionparticular categories of speech deserve, and I have not devised aformula myself. But one way to approach the problem is to askwhether there is any reason to treat criminal advocacy differently fromother speech that receives full protection. If not, then it follows thatcriminal advocacy should also receive full protection. In this Part, Itherefore consider several arguments for giving criminal advocacy lessprotection than other speech. First, I consider whether encourage-ments to commit crime should be viewed as weak imperatives that fallsomewhere between speech and action. Second, I consider whethercriminal advocacy should receive less protection because of thespeaker's intent. Third, I consider whether criminal advocacy isinherently more dangerous than other speech that receives full pro-tection. After rejecting each of these possibilities, I acknowledge thateven if criminal advocacy deserves full protection, that does not meanit can never be prohibited. Under strict scrutiny, the government mayprohibit even fully protected speech if doing so is necessary to furthera compelling governmental interest.241 Applying this standard tocriminal advocacy, I conclude that prohibitions of criminal advocacyare necessary to further a compelling interest only when the advocacyis intended to produce imminent lawless conduct and is likely to pro-duce such conduct-in other words, only when the Brandenburg test ismet. Finally, I argue that Brandenburg should be understood as anapplication of strict scrutiny and that we should resolve its ambiguitieswith that standard in mind.

A. Criminal Advocacy and Situation-Altering Utterances

The first argument for giving criminal advocacy reduced protec-tion has been advanced by Kent Greenawalt and relies upon theoriesabout the way we use language. In his excellent book Speech, Crime,

241 See, e.g., Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) ("TheGovernment may, however, regulate the content of constitutionally protected speechin order to promote a compelling interest if it chooses the least restrictive means [ofdoing so].").

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and the Uses of Language, Greenawalt distinguishes between two uses oflanguage: "assertions of fact and value" and what he refers to as "situa-tion-altering utterances. '242 Assertions of fact and value are state-ments about the way things are or the way things should be.243 "Thesky is blue," is an assertion of fact, as is the statement, "Human pollu-tants are contributing to global climate change." One may disagreewith these statements, but they purport to state a fact about theworld.244 Assertions of value are either evaluative claims, such as,"The sky is pretty," or normative claims, such as, "Humans should stoppolluting the environment. ' 245 As Greenawalt points out, the linebetween assertions of fact and value is not sharp. 246 Depending uponone's views about objectivity and subjectivity, the claim that "humanpollution of the environment is immoral" could be viewed as an asser-tion of either fact or value.

Assertions of fact and value are entitled to full First Amendmentprotection, Greenawalt argues, because they are closely tied to theunderlying justifications for free speech. 247 Assertions of fact promotethe search for truth, provide us the information we need to evaluatepublic policies and personal choices, and allow us to express and exer-cise our judgment as autonomous individuals. 248 Assertions of valuealso contribute to full deliberation of public policy and the exercise ofautonomous judgment.249 In addition, if one believes in the conceptof objective truth, assertions of value also promote the search fortruth.

250

In contrast to assertions of fact and value are situation-alteringutterances, which are similar to J.L. Austin's concept of "performativeutterances" or "speech acts. ' 251 In lay terms, situation-altering utter-ances are "ways of doing things, not of asserting things," and are thusmore like action than speech. 2 52 Common examples are when a brideand groom say, "I do," when a card player says, "I bid three hearts," or

242 GREENAWALT, supra note 73, at 43-44, 57.243 See id. at 43-44.244 See id. at 44.245 Id.246 Id.247 Id. at 43-44.248 Id.249 Id. at 44.250 Id.251 SeeJ.L. AUSTIN, HOW TO Do THINGS WITH WORDS 6, 20 (1962). Greenawalt uses

the term "situation-altering utterances" rather than "performative utterances" in partbecause the category of speech he is referring to is narrower than Austin's category ofperformatives. GREENAWALT, supra note 73, at 58.252 GREENAWALT, supra note 73, at 58.

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when a baseball umpire says, "You're out."253 Greenawalt describessuch utterances as situation-altering because they change the socialcontext in which we live by either (a) changing legal relations (forexample, "I do"); (b) changing one's status according to institutionalstandards or non-legal conventions (for example, "You're out" or "Ibid three hearts"); or (c) altering one's normative obligations (forexample, "I promise").254

Because situation-altering utterances are ways of doing things,not of asserting things, Greenawalt argues that they are not tied to theunderlying justifications for free speech. 255 The statement "I do" doesnot contribute to the search for truth or self-government because itdoes not assert the truth or falsity of any proposition; it simply bringsabout the state of marriage. The statement does further the speaker'sautonomy, but no more than the act of getting married itself. Thesame is true of the statements "I bid three hearts" or "You're out."These statements do not primarily describe the world as it exists (thatis, that I have a good hand or that the runner was tagged before reach-ing base). Instead they purport to change that world by creating anobligation (to win three hearts) or by shifting rights (the right of therunner to stay on the field) .256 Thus, Greenawalt concludes, situation-altering utterances are not entitled to First Amendment protection. 257

Greenawalt's concept of situation-altering utterances is central tohis views on the relationship between crime and free speech. Manylaws punish individuals for the words they use. If two people verballyagree to commit a crime, they can be convicted of conspiracy even ifthey never carry out the crime.258 A person who orders a subordinateto commit a crime or offers someone money to break the law is guiltyof solicitation. 259 And a person who uses words to threaten another

253 Id. at 57-58.254 Id.

255 Id. at 58.256 Greenawalt acknowledges that assertions of fact and value may sometimes be

implicit in situation-altering utterances. Id. at 60. When a groom says "I will," he

implies that he is not already married and wants to marry the bride. But assertions of

fact and value are implicit in most behavior, Greenawalt maintains. When a personplays tennis, he implies that he thinks tennis is worth playing and that the rules are

acceptable. Id. Furthermore, "whatever one wants to communicate about facts andvalues can typically be asserted much more straightforwardly by means other than a

situation-altering utterance." Id.

257 Id. at 58.

258 See, e.g., 18 U.S.C. § 371 (2006).

259 See, e.g., MODEL PENAL CODE § 5.02 (Official Draft and Revised Comments1985).

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person can be convicted of making threats.260 Lawyers and judgeshave long assumed that such punishment does not violate the FirstAmendment, but have not had a theory to support that view.

Greenawalt fills that gap. He argues that punishment for suchstatements does not implicate the First Amendment because they aresituation-altering utterances that change the world by altering norma-tive obligations. 261 When two people agree to commit a crime, Green-awalt argues, they undertake an obligation to each other that did notexist before. 262 That agreement alters their expectations and per-ceived responsibilities and makes it more likely that each will followthrough on the crime than if no agreement had been made. 263 Like-

wise, when a boss orders a subordinate to perform an act, his orderimposes a duty that did not previously exist. 264 The subordinate canignore the order, but if he does he will suffer the consequences.2 65

How does this theory relate to advocacy of unlawful conduct?Greenawalt argues that statements of encouragement are "weakimperatives" that fall somewhere between assertions of fact and valueand situation-altering utterances. 266 They differ from situation-alter-ing utterances in that they are often intertwined with assertions of factand value. 267 They also "do not accomplish a significant change innormative relations or other aspects of the listener's environment."268

On the other hand, Greenawalt argues, whatever assertions of fact andvalue are contained in encouragements usually can be communicatedmore straightforwardly. 269 In addition, encouragements are similar tosituation-altering utterances in that they are "designed to produceaction by someone else." 270 For these reasons, Greenawalt claims thatencouragements "lie at the margin of a principle of free speech, butsuch a principle cannot disregard them altogether. '" 271 He then pro-poses a standard of protection for such statements that varies depend-

260 See, e.g., 18 U.S.C. § 871 (2006) (making punishable a threat against the life ofthe President); MODEL PENAL CODE § 211.3 (Official Draft and Revised Comments1980) (terrorist threats).

261 GREENAWALT, supra note 73, at 239-41.262 Id. at 63, 239-40.263 Id. at 63-64.264 Id. at 65-66.265 Id.266 Id. at 68-71.267 Id. at 70-71.268 Id. at 68.269 See id. at 69.270 Id. at 68.271 Id. at 71.

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ing upon content and context but at its most protective closelyresembles the Brandenburg test.272

Greenawalt is no doubt correct that encouragements-includingencouragements to break the law-often include assertions of factand value. In my example above, the speaker urges draftees to resistconscription because of his assertion that the draft is equivalent toslavery. Greenawalt is also correct that encouragements do not alternormative obligations.273 Unlike an order from someone in authority,encouragements do not create an obligation on the part of the lis-tener. If I urge people on the street to vote for a candidate, they canignore me without any consequences. Friends or relatives might feelobligated to listen out of courtesy, but they would feel the same obli-gation if I were merely asserting facts and values, and they are cer-tainly under no obligation to follow my encouragement. 274

Greenawalt is wrong, however, in suggesting that encourage-ments are like situation-altering utterances because they are "designedto produce action by someone else." Assertions of fact and value arealso frequently designed to produce action by someone else. 2 75 If I

say that a political candidate is unqualified for office, I am trying toget people to vote against that candidate. If I say that SUVs aredestroying the environment, I am trying to get people to drive smallercars. Indeed, we rarely make assertions of fact and value simply toshare our knowledge. Even a seemingly trivial statement such as "thefaculty meeting is at 2 p.m." may be intended to ensure that the lis-tener shows up on time, What distinguishes situation-altering utter-ances is not that they are designed to produce action, but that they arethemselves more like action than speech because they alter legal rela-tions or normative obligations. Encouragements do not alter legalrelations or normative obligations, and the fact that they are designed

272 See id. at 260-77. For the details of Greenawalt's proposal, see infra notes373-78 and accompanying text.273 Id. at 68.274 Listeners might feel obligated by encouragements when the speaker possesses

significant influence, as do religious and political leaders. But basing First Amend-ment protection on whether a speaker has significant influence would require diffi-cult and subjective judgments, which would likely chill valuable speech. See infranotes 288-89 and accompanying text.275 See Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting)

("Every idea is an incitement. It offers itself for belief and if believed it is acted onunless some other belief outweighs it or some failure of energy stifles the movementat its birth.").

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to produce action is not a reason for giving them less protection thanassertions of fact and value. 2 76

To be fair, Greenawalt acknowledges the difficulty of distinguish-ing encouragements from assertions of fact and value. 2 77 He notes

that some assertions of value might be viewed as prescriptions for whatothers should do.278 If a speaker tells a draftee "it is immoral to fightin this war," we might interpret that statement as encouraging thedraftee not to fight. But even viewed in this light, Greenawalt argues,assertions of value are still "quite different" from encouragements.2 79

"[A] value statement typically invokes some universal claim, appeals tothe considered judgment of the listener, does not purport to alter thesorts of factors that are relevant to decision, and does not rest its forceon happening to be asserted by a particular speaker."280 An encour-agement, by contrast, does "not appeal to preexisting factors relevantto decision making" and "injects the force of the speaker's personalitytoward a particular result."281

Greenawalt's distinction is not persuasive. First, he claims thatassertions of value typically invoke some universal claim and appeal tothe considered judgment of the listener. However, the same can besaid of many encouragements, as illustrated by my draft example. If aspeaker says "I urge conscripts to resist military service because thedraft is equivalent to slavery," he is making a claim about the moral

276 Greenawalt might respond that although assertions of fact and value are some-times designed to produce action, that is not their dominant purpose, whereas it isthe dominant purpose of encouragements. But I am not sure one can generalizeacross the entire category of assertions of fact and value. Some assertions of fact andvalue are not designed to produce action, such as "the sky is blue." But there areprobably an equal number that are, such as: "Human pollutants are contributing toglobal climate change." Should the latter statement receive less protection than theformer? If not, why should encouragements receive less protection than assertions offact and value?

Greenawalt also argues that whatever assertions of fact and value are contained inencouragements could be communicated more straightforwardly without the encour-agement. See GREENAWALT, supra note 73, at 70-71. However, this depends on whatthe speaker is trying to communicate. If the speaker is only trying to communicateraw facts, Greenawalt may be right. But as pointed out above, criminal advocacy mayexpress the intensity and depths of the speaker's beliefs in a way that simple assertionsof fact and value cannot. See supra notes 227-29 and accompanying text.277 GREENAWALT, supra note 73, at 69 ("Indeed, perhaps the most troubling prob-

lem about weak imperatives is determining whether they are really distinguishable forour purposes from assertions of fact and value.").278 See id. at 69-70.279 See id. at 70.280 Id.281 Id.

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status of the draft and is appealing to the considered judgment of thelistener. It is true that the simplest encouragements-"Please shut thedoor," "Kill him, Jack"-do not invoke universal claims or appeal tothe listeners' judgment, and Greenawalt uses such examples to sup-port his claim.28 2 But the same is true of the simplest value state-ments, such as "that movie sucks" or "he's a jerk." Moreover, simpleencouragements, stripped of all assertions of fact or value, are rare.People who encourage others to act almost always offer reasons forthat action. 28 3 Thus, simple encouragements should not be treated asrepresentative of the category of encouragements.

Second, Greenawalt says value statements do not rest their forceon happening to be asserted by a particular speaker, whereas encour-agements inject the force of the speaker's personality toward a partic-ular result.28 4 This is not entirely accurate. Listeners often give moreor less weight to an assertion of fact or value depending upon theidentity of the speaker. The statement "the war in Iraq is a mistake"would carry more force if said by Colin Powell than by a stranger onthe street. Likewise, most people would probably take more seriouslya claim about global warming from a scientist who has studied theissue than from a layperson. At the same time, not all encourage-ments depend on the force of the speaker's personality. If I publishan anonymous pamphlet urging workers at a munitions factory tostrike, the force of that appeal does not rest on my identity orpersonality.

Still, it is true that encouragements are often more personal thanassertions of fact and value. A speaker who encourages others to actdoes not just offer reasons for that action; he necessarily implies thathe wants the listener to perform that act and will be gratified if thelistener complies. 285 Indeed, I think this is the aspect of criminal

282 Id. at 69. An interesting example that Greenawalt does not consider is "fuckthe draft." Technically, this is an encouragement that does not invoke tniversalclaims or appeal to the considered judgment of the listener, yet the Supreme Courtheld that it was protected in Cohen v. California, 403 U.S. 15, 26 (1971). PerhapsGreenawalt would argue that "fuck the draft" is an expression of feeling rather thanan encouragement since what it urges people to do is not literally possible. But thestatement might easily be interpreted as encouragement to resist the draft.283 And as explained above, it would undermine the values of the First Amend-

ment if speakers were required to extract all encouragements from their assertions offact and value. See supra notes 226-33 and accompanying text. Greenawalt appears toagree with this point. See GREENAWALT, supra note 73, at 70-71.284 See GREENAWALT, supra note 73, at 70.285 Cf Gitlowv. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting) ("The

only difference between the expression of an opinion and an incitement in the nar-rower sense is the speaker's enthusiasm for the result.").

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advocacy that many people find particularly objectionable. It is badenough when a speaker makes assertions that might lead listeners tobreak the law; for the speaker to also imply that their violation of thelaw will please him is downright galling.

But why should this matter for purposes of the First Amendment?One possibility is that when a speaker says he wants a listener to dosomething, he is not appealing to the listener's rational judgment; heis simply appealing to the listener's desire to please him. However,this argument suggests that the only worthy reasons for action arethose based on rational judgment. It ignores the value of emotionand sentiment in decisionmaking. It also ignores the Court's state-ment that the First Amendment protects speech for its emotive func-tion as well as its cognitive content.28 6

Moreover, this argument wrongly suggests that wanting to pleaseanother person is not a rational basis for action. We often take intoaccount what other people want when deciding how to act. If my wifeurges me not to talk politics at dinner, I may agree because dinner willbe more pleasant if politics are avoided. But I may also agree becauseI know it will make her happy. Is that irrational? My wife does notthink so. For a less freighted example, consider a colleague's requestthat I attend an admissions event at school. In addition to my desireto attract good students, I may attend in part because it will please mycolleague who has worked hard on admissions. Again, it would behard to call such a motivation irrational. 28 7

There might be some situations in which a speaker has such influ-ence over a listener that we would be troubled by an appeal to thelistener's desire to please him. If a parent encourages a child to com-mit a crime, we may doubt whether the child is really exercising inde-pendentjudgment. 288 We may have similar concerns when a popularreligious or political figure encourages his followers to break the law.In these situations, the encouragement comes close to resembling anorder that alters normative obligations. Thus, one might argue thatencouragements under these circumstances do not deserveprotection.

286 See supra notes 227-29 and accompanying text.287 Notice also that assertions of fact and value sometimes appeal to a listener's

desire to please someone. If a speaker says, 'John wants you to resist the draft becauseit's immoral," he has asserted a fact about what John wants. But the basis of theappeal is the same-it would please another person for the listener to resist the draft.

288 A good example is the Beltway Sniper case, in which a father and his son killedat least ten people in the Washington, D.C. area. See Charlie LeDuff & Dean E. Mur-phy, The Devoted 'Stepson, 'N.Y. TIMES, Oct. 26, 2002, at Al.

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The problem is that, absent clear evidence of a hierarchical rela-tionship, it would be very difficult to make protection for speechdepend on the level of influence the speaker has over the listener.How would we determine whether a particular speaker has undueinfluence over his listeners? We might create a list of relationships inwhich one person usually has excessive influence over another: par-ent-child, religious leader-disciple, teacher-student. But this list wouldinevitably be over- and underinclusive. Not all religious leaders havesubstantial influence over their followers, and some children havemore influence over their parents than vice versa. Alternatively, wemight look at the nature of each relationship after the words havebeen spoken. But this would not give speakers sufficient warning as towhen they could be held liable for criminal advocacy and would there-fore likely chill protected speech. 289

In short, Greenawalt's theory does not justify giving criminaladvocacy less than full First Amendment protection. Encouragementstypically invoke universal claims, appeal to the considered judgmentof the listener, and are no more designed to produce action thanmany assertions of fact and value. Moreover, the fact that encourage-ments often appeal to the listener's desire to please the speaker is nota good reason for denying them full protection. Therefore, Greena-walt is wrong to treat encouragements as falling between assertions offact and value and situation-altering utterances. With respect to theunderlying justifications for free speech, encouragements are just asvaluable as assertions of fact and value.

B. Speaker Intent

Perhaps the reason criminal advocacy deserves reduced protec-tion is not because it is less valuable than other speech but because ofthe speaker's intent. Criminal liability and punishment are often pre-mised on intent. A driver who intentionally hits a pedestrian is guiltyof murder, while a driver who does so by accident is not.290 A personwho tries to open the door of a locked bank with the intention ofrobbing it is guilty of attempted robbery, while a person who tries to

289 This same problem might arise when trying to determine whether a speakerhas the authority to order a listener to do something. But there will usually be someobjective criteria by which to make this determination, such as whether the listener isemployed by the speaker.290 Compare MODEL PENAL CODE § 210.2 (Official Draft and Revised Comments

1985) (murder includes any criminal homicide committed purposely, knowingly, orrecklessly), with id. § 210.4 (making negligent homicide a separate crime frommurder).

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open the door to make a deposit is not.2 9 1 The theory behind thesedistinctions is that people who intend to cause harm are more culpa-ble, more dangerous, and more easily deterred than those who do soaccidentally.

Drawing on this reasoning, one might argue that a speaker whoadvocates unlawful conduct is not entitled to full First Amendmentprotection because the speaker's intent is to bring about crime.292

The guarantee of free speech is an extraordinary privilege. It givespeople wide latitude to express their views even when doing so con-flicts with the social interest in order and decency. But this privilegeshould not extend to those who use speech in an effort to bring aboutunlawful conduct. They have abused the privilege of free speech andshould not be permitted to hide behind its protections.

I see three problems with this argument. First, although mostspeakers who use language advocating criminal conduct probablyintend to bring about crime, some do not. Imagine a fan at a footballgame who yells to the players rushing the quarterback, "Knock hishead off." The fan does not seriously intend for the players to commita crime; he is using hyperbole to signal his enthusiasm for strongdefense. Or, to borrow an example from Greenawalt, imagine a manwho has just learned that his sister was raped by a stranger and whotells her husband he should kill whoever did it.293 The man may sim-ply be venting his emotions and may have no real intent that the hus-band commit murder.

Of course, courts might still deny full protection to criminal advo-cacy where the speaker does intend to bring about crime. Indeed, theSupreme Court appears to have embraced this approach in Branden-burg, stating that advocacy of unlawful conduct is protected unless it is"directed to inciting or producing imminent lawless action" and islikely to do so. 29 4 But this approach has its drawbacks. Determining aspeaker's intent is a difficult task. There is often little evidence ofintent, and the evidence that exists is frequently subject to differing

291 See, e.g., id. § 5.01 (taking a "substantial step" toward committing a crime con-stitutes attempt of that crime).292 See GREENAWALT, supra note 73, at 191 ("Holmes and Brandeis assumed that at

least in some circumstances expression with an intent to create a clear and presentdanger could be deprived of constitutional protection.").293 See id. at 112.294 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). Scholars have

interpreted the words "directed to" as imposing an intent requirement. See, e.g.,Erwin Chemerinsky, The Rhetoric of Constitutional Law, 100 MICH. L. REV. 2008, 2017(2002) ("Brandenburg contains an intent requirement. ....").

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interpretations. 295 This means that determinations of intent are likelyto be influenced by the factfinders' opinions of the speaker's views. Ifthe factfinders dislike those views-as is usually the case in prosecu-tions for criminal advocacy-they are more likely to infer bad intentthan if they agree with the speaker's views. 296 The result is that speak-ers may sometimes be punished for their views, not for intending tobring about crime.

I do not want to overstate this concern. Problems of determiningintent are not limited to cases involving speech, and courts have man-aged to deal with these problems in other contexts. 29 7 Moreover,given that most speakers who advocate unlawful conduct probably dointend to bring about crime, it will be the rare case where a jurywrongly infers intent because it disagrees with the speaker's views.Still, concerns about determining intent may be sufficient to precludeus from punishing criminal advocacy on the basis of intent alone. Wemay feel more comfortable combining a requirement of intent with arequirement that the speech pose a high risk of danger. As I note inPart III.D, that is the approach the Court has taken in Brandenburg,and it is one that makes good sense.

Second, if bad intent alone were sufficient to reduce First Amend-ment protection, lots of speech other than criminal advocacy wouldlose protection. Many assertions of fact and value are said with badintent. Consider a statement that makes it easier for others to commita crime, such as a description of the gaps in airport security. 29 8 Orconsider a statement that provides a reason for others to commit acrime, such as "the draft is the equivalent of slavery." Both types ofstatements may be said with the intent to bring about unlawful con-duct. But it would severely limit the scope of free speech to deny pro-tection to such statements on the basis of the speaker's intent.Moreover, determining the speaker's intent in such situations wouldbe especially difficult. Unlike language advocating criminal conduct,most assertions of fact and value are not made with bad intent. There-fore, we cannot presume that the risk of an erroneous determinationof intent is low. Given the difficulty of determining intent, juriesmight well find bad intent simply because of disagreement with the

295 See GREENAWALT, supra note 73, at 111-13, 261-62, 267.296 See id. at 266.297 See Dennis v. United States, 341 U.S. 494, 500 (1951) (plurality opinion).298 See Eric Lipton, Report Presses Easy Ways to Fix Airline Security, N.Y. TIMES, June 5,

2005, at Al.

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speaker's views. 299 Speakers, in turn, might be deterred from expres-sing unpopular views, which would diminish public debate." °

Third, and most importantly, the speaker's intent has nothing todo with why we protect speech in the first place. We do not protectspeech to reward speakers for good intentions. We protect speechbecause we think doing so will further the values underlying the FirstAmendment, such as the search for truth, self-government, and self-fulfillment. And these values can be promoted regardless of whetherthe speaker has bad intent. Consider a person who, with the intent tocause a riot, releases a video of the police beating a suspect. The per-son's intent may be bad, but the value of the speech for society isconsiderable. The video sheds light on police misconduct and helpsus evaluate how public officials are performing their jobs. That thespeaker acted with bad intent is irrelevant to the video's value; itsvalue would be the same if the speaker acted with good intent.3 °1

This illustrates a larger point about the First Amendment, whichis that we protect speech primarily for its value to society, not speak-ers. In this respect, free speech is different from many other constitu-tional rights. For instance, we protect the right to abortion andcontraception primarily out of respect for the private choices of indi-viduals, not because we think doing so benefits society.30 2 The same istrue of the right to be free from unreasonable searches and seizures.Although this freedom might make people less inhibited in how theylead their lives, which might ultimately lead to a happier, more crea-tive society, we prohibit unreasonable searches primarily out ofrespect for individual privacy. Free speech is different. With theexception of the self-fulfillment rationale, nearly all of the underlying

justifications for free speech emphasize the benefits to society, not the

299 See GREENAWALT, supra note 73, at 266.300 Of course, one might agree that assertions of fact and value should not be

punished on the basis of speaker intent but still argue that advocacy of unlawful con-duct with the intent to bring about crime should be unprotected. Because the risk ofchilling well-intentioned speech is lower in the context of criminal advocacy, it wouldarguably be justifiable to treat the two types of speech differently.

301 See, e.g., People v. Rubin, 158 Cal. Rptr. 488, 491 (Cal. Ct. App. 1979) ("Speechis protected or not in the context of its expression and surroundings, and, if pro-tected, the constitutional protection takes hold, regardless of the purity or malig-nancy of the speaker's motives."); Alexander, supra note 27, at 107 ("[N]either thevalue of the speech as information nor the danger of the speech to legitimate inter-ests turns on the speaker's purpose.").302 See Bowers v. Hardwick, 478 U.S. 186, 204 (1986) (Blackmun, J., dissenting)

("We protect those [privacy] rights not because they contribute, in some direct andmaterial way, to the general public welfare, but because they form so central a part ofan individual's life.").

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speaker.30 3 Thus, speech should not lose protection just because thespeaker has bad intent. What matters is not whether the speakerdeserves protection, but whether protecting the speech will benefitsociety by promoting the underlying values of the First Amendment.

This is not to say that a speaker's mental state should play no rolein First Amendment analysis. Under New York Times Co. v. Sullivan,30 4

for instance, a speaker cannot be held liable for false defamatory state-ments about public officials unless the speaker knows the statementsare false or acts with reckless disregard as to whether they are false.30 5

But such statements are not unprotected because of the speaker'sknowledge or recklessness. Such statements are unprotected because,being false, they have little value and cause significant harm. In fact,this is true of all false defamatory statements. But we extend protec-tion to such statements made without knowledge or recklessnessbecause, although they have little value themselves, punishing themcould chill valuable speech.30 6 Punishing false defamatory statementsthat the speaker knows are false or when the speaker has acted reck-lessly, however, is not likely to chill valuable speech. As a result, theyare not protected under Sullivan.30 7

We might apply the same reasoning to criminal advocacy. As Iexplain in Part III.D, criminal advocacy is sometimes sufficiently dan-gerous that we are justified in prohibiting it despite its value. Butbecause of concerns about the chilling effect, we may not want to pun-ish such advocacy where the speaker does not intend to bring aboutharm. That is, we may worry that if speakers know they can be pun-ished for dangerous statements made recklessly or negligently, theywill censor themselves, and we will lose valuable speech.3 0 8 Wherespeakers know they can be punished only if they intend to bring aboutcrime, however, there is less risk that valuable speech will be chilled.As long as they do not intend to cause harm, speakers have less reasonto worry about being punished for their speech. 30 9 Indeed, this is theapproach taken by Brandenburg. It requires the government to show

303 See supra notes 217-21 and accompanying text.304 376 U.S. 254 (1964).305 See id. at 279-80.306 See id. at 271-72.307 See id. at 279-80.308 See Rice v. Paladin Enters., 128 F.3d 233, 247 (4th Cir. 1997) (noting that pun-

ishing speakers on the basis of "mere foreseeability or knowledge" may chill "entirelyinnocent, lawfully useful speech").309 I say "less reason" rather than "no reason" because there is still a possibility that

juries will impute bad intent to speakers who express unpopular or dangerous views.See supra notes 297-98 and accompanying text.

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not only that speech is likely to produce imminent unlawful conduct,but also that it is directed to produce such conduct.310 In this way, itensures that speakers do not censor themselves for fear of inadver-tently crossing the line into unprotected speech.

In sum, a speaker's intent to bring about crime is not a sufficientreason by itself for denying criminal advocacy full protection. But ifwe deny protection to such speech for other reasons-for instance,because under some circumstances it is especially dangerous-itmakes sense to require a showing of intent in order to avoid the self-censorship that would result if speakers could be punished on thebasis of recklessness or negligence.

C. Dangerousness

A third argument for giving reduced protection to criminal advo-cacy is that it is inherently more dangerous than other speech. As Isaid at the beginning of Part II, common sense suggests that encour-agement of an act makes it more likely that the act will occur. If this iscorrect, we might conclude that criminal advocacy deserves less pro-tection because it poses a greater risk of harm than other speech thatis fully protected.

But is this true? If we compare criminal advocacy as a class toassertions of fact and value as a class, the answer is probably yes. Mostcriminal advocacy creates at least a slight risk of harm, while manyassertions of fact and value, such as "the sky is blue," pose no dangerat all. However, if we compare criminal advocacy to assertions of factand value that provide reasons for violating the law, the answer isprobably no. Consider two statements about the draft. One speakersays "I urge you to resist the draft because it is the equivalent of slav-ery." Another speaker says "the draft is the equivalent of slavery." Thefirst speaker has explicitly encouraged violation of the draft laws,while the second speaker has merely offered a reason for violatingthose laws. Yet it is not clear that the first statement is more likely tolead to draft resistance than the second.

In some instances, assertions of fact and value may pose a greaterrisk of harm than encouragements to crime. If a speaker tells drafteesthat nine out of ten soldiers sent into battle will be injured or killed,that may have a greater impact than explicit advocacy of draft resis-tance. Assertions of fact that facilitate crime, such as bomb-makinginstructions, may also pose a greater risk than criminal advocacy. AsEugene Volokh has explained, a person usually needs three things to

310 See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam).

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commit a crime: (1) the desire; (2) the knowledge; and (3) either a)the belief that the risk of getting caught is low enough to make itworthwhile, b) the willingness-often born of rage or felt ideologicalimperative-to act without regard to risk, or c) a careless disregard forthe risk.311 Criminal advocacy can create (1) (the desire) and (3) (b)(the willingness to disregard risk), though desire usually develops overtime, not as the result of a single speech, and can be mitigated bycounterspeech.3 12 Crime-facilitating speech, on the other hand, caninstantly create (2) (the knowledge) and (3) (a) (the confidence ofnot getting caught), and once that knowledge is acquired counter-speech is not likely to eliminate it.313 Thus, Volokh concludes that"the danger of crime-facilitating speech may be greater than the dan-ger of crime-advocating speech. '3 14

Of course, just because some assertions of fact pose an equal orgreater danger than criminal advocacy does not mean the lattershould be fully protected. It might mean we should reduce protectionfor dangerous assertions of fact. Indeed, as noted above, some courtshave concluded that instructions on how to commit crime should notreceive full protection.31 5 The Supreme Court has not yet consideredthese arguments, though Justice Stevens appeared receptive to themrecently in a statement accompanying a denial of certiorari.3 1 6

But the argument for restricting such speech is not strong. AsVolokh has also pointed out, most crime-facilitating speech has bothharmful and valuable uses.3 17 A book on explosives can teachcriminals how to build bombs, but it can also teach engineers how toblow up buildings slated for demolition. A newspaper article describ-ing gaps in airport security can help terrorists avoid detection, but itcan also stimulate public debate about improving security. Restrictingsuch speech will prevent the harmful uses, but it will also prevent thevaluable uses. Therefore, Volokh argues, courts should be extremely

311 Volokh, supra note 34, at 1107.312 Id. I discuss the role of counterspeech infra at notes 379-80 and accompany-

ing text, as well as in Part IV.B.313 See Volokh, supra note 34, at 1107-08.314 Id. at 1107. Volokh qualifies his statement by "setting aside the speech that

advocates imminent crime." Id. As I argue in Part III.D, this is the most dangeroustype of criminal advocacy and thus deserves the least protection.

315 See supra notes 109-13 and accompanying text; see also Kendrick, supra note 4,at 2001 (discussing federal and state cases regarding criminally instructional speech).316 See Stewart v. McCoy, 537 U.S. 993, 995 (2002) (Stevens, J., concurring in

denial of certiorari) ("[Speech that performs a teaching function] should not beglibly characterized as mere 'advocacy'. ... ).317 See Volokh, supra note 34, at 1107-26.

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reluctant to permit restrictions on crime-facilitating speech.3 1 8 Crimi-nal advocacy also has value, as I have explained above. And given thatit is no more dangerous than many other types of speech that receivefull protection-and perhaps less dangerous than some-it is difficultto cite its dangerousness as a reason for giving it reduced protection.

D. Brandenburg As Strict Scrutiny

If these arguments do not justify reduced protection for criminaladvocacy, does that mean it can never be prohibited? Not at all. Asthe Supreme Court has recognized, constitutional rights-includingfreedom of speech-are not absolute.3 19 Where overriding societalinterests are seriously threatened by the exercise of constitutionalrights, those rights must give way. This is not a license for governmentto abuse its power or target unpopular minorities. It is simply anacknowledgment that any constitution intended to endure mustachieve a balance between individual freedom and societal needs.

The Supreme Court's recognition of this principle is reflected inthe doctrine of strict scrutiny, which allows the government toinfringe even fundamental rights when doing so is necessary to fur-ther a compelling interest.3 20 Strict scrutiny is the standard thatapplies to content-based restrictions of fully protected speech underthe First Amendment.321 Therefore, if I am right that criminal advo-cacy is entitled to full protection, the government can still prohibit itwhen there is no other way to further a compelling interest.

Under what circumstances might this standard be satisfied? Let'sstart with the compelling interest prong. The governmental interestthreatened by criminal advocacy is compliance with the law: if crimi-nal advocacy is successful, it will lead to crime. Does government havea compelling interest in preventing crime? With the exception of allbut the most minor crimes, the answer is certainly yes. 322 Government

318 See id. at 1217. Volokh argues that such restrictions should be permitted inonly three circumstances:

(1) When the speech is said to a few people who the speaker knows arelikely to use it to commit a crime or to escape punishment ....

(2) When the speech, even though broadly published, has virtually nononcriminal uses ....

(3) When the speech facilitates extraordinarily serious harms, such asnuclear or biological attacks ....

Id. (emphases omitted).319 See Schenck v. United States, 249 U.S. 47, 52 (1919).320 See, e.g., Burson v. Freeman, 504 U.S. 191, 198, 211 (1992) (plurality opinion).321 See id. at 198.322 See infra notes 363-65 and accompanying text.

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cannot protect the security and property of citizens if it cannot takesteps to prevent crime. Therefore, when criminal advocacy is likely tolead to crime, the government has a compelling interest in prohibit-ing it. But when criminal advocacy is unlikely to lead to crime, it can-not be prohibited because such advocacy, by definition, does notimplicate the government's compelling interest in preventingcrime.3 23

Establishing the existence of a compelling interest is only half thetask. The government must also show that there is no less restrictivealternative for furthering its compelling interest-or, to put it differ-ently, that the infringement of a fundamental right is necessary toachieve the desired benefit or prevent the feared harm. 324 The fearedharm of criminal advocacy is that it will lead to unlawful conduct, sothe question is whether prohibiting criminal advocacy that is likely tolead to crime is necessary to prevent the crime from occurring.

With respect to criminal advocacy that is likely to lead to imminentunlawful conduct, the answer is probably yes. When a speaker urgeslisteners to commit a crime right now or very soon and those listenersare likely to comply, there is almost nothing the government or any-one else can do to prevent the crime from occurring. There is littletime for police intervention, counterarguments from other speakers,or reflection and deliberation on the part of the listeners. The gov-ernment's only alternative is to criminalize the advocacy in the hopeof deterring speakers from engaging in it to begin with.

But when a speaker urges listeners to violate the law in the future,the government has several alternatives. First, assuming the speech ispublic,325 the police have at least some ability to prevent the crimefrom occurring. They can monitor the listeners and arrest them forattempt or conspiracy if they take steps toward commission of thecrime. 326 They can also deter the listeners by making clear that theyare being monitored, that the crime will not succeed if attempted, andthat anyone attempting the crime will be caught and punished. Ofcourse, police intervention will not always be effective. When aspeaker addresses a large audience, it may not be feasible for police tomonitor the actions of all the listeners. In addition, some listenersmay be so persuaded by the speaker's encouragement that they arewilling to commit the crime even if they know they will be caught. But

323 I discuss the issue of how likely the crime must be in Part [V.A.324 Freeman, 504 U.S. at 198 (plurality opinion).325 I consider criminal advocacy that is private in Part IV.D.326 See, e.g., MODEL PENAL CODE § 5.01, .03 (Official Draft and Revised Comments

1985) (defining attempt and conspiracy).

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police intervention seems likely to be effective in at least some casesand should therefore be taken into account when determiningwhether there are less restrictive alternatives for furthering the gov-ernment's interest.327

Second, when a speaker advocates future crime, other speakershave an opportunity to rebut his arguments and discourage his listen-ers from breaking the law. This is the theory of counterspeech thatJustice Brandeis articulated so eloquently in Whitney v. California. "Ifthere be time to expose through discussion the falsehood and falla-cies, to avert the evil by the processes of education," he wrote, "theremedy to be applied is more speech, not enforced silence."328

Counterspeech theory has played an important role in First Amend-ment doctrine and is often invoked as an argument against speechregulation.3 29 But it is not without its critics, 330 and so we must con-sider several possible objections before concluding that counter-speech is a viable alternative to regulation.

One objection might be that reliance on counterspeech reflects anaive faith in the power of words. People are usually quite set in theirbeliefs, one might argue, and rarely change their minds in response toargument. It is therefore futile to rely on counterspeech to rebutcriminal advocacy since listeners are not likely to be influenced bywhat the counterspeakers say. Framed this broadly, however, theargument proves too much. If words have no power to influencebeliefs or action, then criminal advocacy can have no effect either.People will either break the law or not, and nothing that speakers orcounterspeakers say makes any difference.

The objection must be narrower-not that words have no power,but that counterspeech is likely to be less effectual than criminal advo-cacy. Why might this be? I can think of two reasons, although I findneither persuasive. First, one might argue that the marketplace ofideas is not the idealized debate club we sometimes imagine it tobe.33 1 Instead, it is a chaotic, rambunctious space where reasonedargument is drowned out by impassioned rhetoric and listeners ignoreideas they do not want to hear. I agree that the marketplace of ideas

327 See GREENAWALT, supra note 73, at 268 (suggesting that police interventionmight be an effective alternative to the prohibition of speech that urges futurecrime).328 Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).329 See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 586 (2001) (Thomas, J.,

concurring); Texas v. Johnson, 491 U.S. 397, 419-20 (1989); Brown v. Hartlage, 456U.S. 45, 61 (1982).330 See REDISH, supra note 28, at 191.331 See BAKER, supra note 221, at 12-17.

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is not always a meritocracy and that audiences are often self-selecting.But I am not convinced that counterspeech will therefore be ineffec-tive. Counterspeech does not have to be dispassionate and sober; likecriminal advocacy, it can be fiery, provocative, and manipulative.Think of Joseph McCarthy's attacks on communists in the 1950s orthe way right-wing pundits have demonized critics of the Iraq War.Moreover, to say that listeners tune out arguments they do not want tohear is just another way of saying that words have no power to influ-ence beliefs. Yet people's views do change, often in response to argu-ments they initially ignored or resisted.

The other argument is that counterspeech will not be as effectiveas criminal advocacy because listeners are most likely to be persuadedby the first speaker they hear. This argument assumes a sort of pathdependency in the art of persuasion that I am not sure exists. Buteven if it does, the argument would fail because criminal advocacydoes not always precede the speech that opposes it. Take the draftexample I have used throughout this Article. Long before anyoneadvocates resistance to the draft, listeners will likely have been toldthat the draft is noble and just and that strict compliance with it isnecessary to protect the country. It is true that some listeners willhave rejected that message since we are dealing now only with crimi-nal advocacy that is likely to lead to crime. But listeners will hear themessage again after they are encouraged to resist the draft, and theymay be more receptive to it the second time around. Moreover, iflisteners rejected the initial message in favor of the draft, that under-mines the premise of the path dependency argument, which is thatlisteners are most likely to be persuaded by the first speaker they hear.

Finally, even if counterspeech is effective, one might argue thatgovernment should not have to rely on the efforts of others to preventcrime. The "less restrictive alternative" inquiry is about what govern-ment can do to further its compelling interest, not what people cando. Under the Constitution, however, the people are the govern-ment.332 And if they can minimize the danger of criminal advocacythrough counterspeech, it is hard to see why they should not berequired to do so before authorizing their representatives to prohibitit. Moreover, the official organs of government can engage incounterspeech too. If a speaker urges young men to resist the draftbecause they will be sent to fight a war that is unjust, unwise, or unwin-nable, the government can respond by defending the war. Govern-ment-particularly at the federal level-has massive resources and a

332 SeeU.S. CONST. pmbl. ("We the People of the United States, in Order to form amore perfect Union . . ").

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long history of information campaigns to rebut critics, so it is notimplausible to suggest that it can engage in counterspeech to under-mine criminal advocacy.

The third alternative to government regulation is not so much analternative as a reason to think that prohibiting advocacy of futurecrime is not necessary to prevent the crime from occurring. When aspeaker urges listeners to break the law, they may initially be per-suaded by the force of his arguments and the intensity of his convic-tions. But as time passes and listeners reflect on the speaker'smessage, the persuasive force of his words may diminish. This seemsespecially likely when listeners are urged to violate the law. Most peo-ple are socially conditioned to follow the law and do not commitcrimes lightly. Impassioned language and forceful arguments maytemporarily rouse them to a state of lawlessness. But when they wakethe next morning and consider actually breaking the law, they arelikely to have second thoughts. There are exceptions, of course.Reflection and deliberation will sometimes reinforce the listener'sagreement with the speaker and embolden him to act. But at leastwhere crime is advocated, it seems likely that the passage of time willreduce the likelihood that listeners will act on the speaker'sencouragement.

There are three alternatives, then, to the regulation of criminaladvocacy that is likely to lead to future crime. The government canrely on police intervention, counterspeech, or the passage of time toprevent the crime from occurring. These alternatives may not alwaysbe effective at furthering the government's compelling interest incrime prevention. But even a ban on criminal advocacy will not alwaysbe effective. And without good reason to think that these alternativeswill be less effective than regulation, strict scrutiny requires the gov-ernment to rely on them instead of prohibiting fully protectedspeech.

333

In addition to the existence of less restrictive alternatives, there isanother reason to conclude that government cannot prohibit advo-cacy to engage in future crime. As noted above, we are dealing in thissection with criminal advocacy that is likely to lead to crime, since it isonly such advocacy that implicates the government's compelling inter-est in crime prevention. But determining whether criminal advocacyis likely to lead to crime is not easy. The success of speech depends ona range of factors that cannot easily be assessed by the speaker at thetime he speaks, by the police at the time of arrest, or by courts at thetime of trial. In addition, because those who advocate crime are usu-

333 See Burson v. Freeman, 504 U.S. 191, 198 (1992) (plurality opinion).

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ally not sympathetic, the likelihood of success is almost certain to beoverestimated by both the police and the courts.334 This means wemust be very careful about how the likelihood determination is made.And all other things being equal, it is far easier to predict whether aspeaker's words are likely to lead to imminent unlawful conduct thanfuture unlawful conduct. If a speaker urges a group of people tostorm city hall immediately, we can gauge the likely success of hiswords by looking at the surrounding circumstances. Is the speakerinfluential? Is the crowd angry? Are the police present? But if aspeaker urges a group of people to storm city hall next week, nextmonth, or next year, it is far harder to predict whether they will act onhis words. As the time frame expands outward, it becomes increas-ingly difficult to assess all the circumstances that bear on the question.At a certain point, we are just speculating. And because criminaladvocacy is valuable and fully protected speech, it should not be pro-hibited based upon speculation about its effects.

We are close to having a final test for the protection of criminaladvocacy, but there is one further element to add. In my discussion ofintent in Part III.B, I noted that although speech should not berestricted on the basis of intent, that does not mean a speaker's mensrea is irrelevant. Because of concerns about the chilling effect ofspeech regulations, it is often necessary to impose a mens rea require-ment before government may punish speech. 33 5 Without this protec-tion, people would likely be hesitant to engage in some protectedspeech for fear of inadvertently breaking the law, and society would bedeprived of valuable speech. This concern applies equally to criminaladvocacy. Although government has a compelling interest in prohib-iting criminal advocacy that is likely to lead to imminent unlawful con-duct and although there are no less restrictive alternatives forfurthering that interest, such speech should not be punished unlessthe speaker has a specified mens rea. Without such a requirement,speakers might be hesitant to criticize government or the law for fearthat their words would be interpreted as likely to lead to imminentlawless conduct.

The only question is what level of mens rea should apply. Thereare four possibilities: negligence, recklessness, knowledge, or intent.A negligence standard seems clearly inadequate to prevent self-censor-ship. Negligence is a notoriously vague and subjective concept andcan too easily be manipulated by a judge or jury hostile to a speaker'sviews. Indeed, the Court rejected a negligence standard for defama-

334 See GREENAwALT, supra note 73, at 266.335 See New York Times Co. v. Sullivan, 376 U.S. 254, 271-72 (1964).

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tion cases in New York Times Co. v. Sullivan, finding it to be "constitu-tionally insufficient. '3 3 6 A knowledge standard also seemsinappropriate. How would a court determine whether a speaker knewthat his words were likely to lead to imminent unlawful conduct? Thefuture is not something one can know; it is something one can onlyspeculate about. It is true that knowledge is sufficient for liability indefamation cases. But those cases turn on statements of fact. Andwhile it makes sense to ask whether a defendant knew that a statementof fact was false, it does not make sense to ask whether he knew thathis speech would lead to imminent lawless conduct.

That leaves us with recklessness and intent. In Sullivan, the Courtruled that speakers can be held liable for defamation if they knew thatthe defamatory statement was false or acted with reckless disregard asto whether it was false. 337 Sullivan thus approved a recklessness stan-dard for defamation, which might suggest that this standard is alsoappropriate for criminal advocacy. However, there is good reason toreject that conclusion. In post-Sullivan cases, the Court has held thatspeakers have no duty to check the accuracy of defamatory statementsbefore publishing them. Instead, defendants are reckless only if theyentertained serious doubts about the truth of the statements. 33 8 Thismeans that the recklessness determination in defamation cases turnslargely on an objective inquiry: was the speaker aware of facts thatgave rise to serious doubts about the truth of the statements? In crimi-nal advocacy cases, however, a recklessness inquiry would likely be sub-jective: was it grossly irresponsible of the speaker to advocate unlawfulconduct given the circumstances in which he spoke? Subjective stan-dards are dangerous in the free speech context. They are imprecise,which means judges and juries can easily manipulate them to punishspeakers with unpopular views. And they are unpredictable, whichmeans they can chill valuable speech. We should therefore reject arecklessness standard in favor of intent. Requiring proof that aspeaker intended to bring about imminent unlawful conduct will limitthe discretion of judges and juries and help ensure that speakers donot censor themselves for fear of inadvertently crossing the line intounprotected speech.

We now have a complete standard for assessing criminal advocacythat we can state succinctly. Criminal advocacy is fully protectedspeech that is generally not subject to punishment. But where it is (1)intended to produce imminent unlawful conduct and (2) likely to pro-

336 Id. at 279-80.337 Id.338 See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991).

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duce such conduct, it can be prohibited because the government hasa compelling interest that cannot be furthered by less restrictivemeans.

As the careful reader will have noticed, this test bears a strikingresemblance to Brandenburg. Indeed, it is the same in all respectsexcept for use of the word "intended" instead of "directed." But mostcourts and scholars have interpreted "directed" to mean"intended, 339 so the difference is purely semantic. My standard,arrived at through an application of strict scrutiny, is identical to theBrandenburg test.

What should we make of this? Is it a coincidence that the stan-dard I have arrived at by applying strict scrutiny is identical to theBrandenburg test? I do not think so. Although the Court did not char-acterize Brandenburg as an application of strict scrutiny, we should notbe surprised that the test it adopted rests on the same principles thatunderlie that standard. As Stephen Siegel convincingly argued in arecent article, strict scrutiny has its origins in the clear and presentdanger test articulated by Holmes and Brandeis..3 40 Consider Bran-deis' statement in Whitney that restrictions on speech are permittedonly if they are "required in order to protect the State from destructionor from serious injury."34 1 Or consider the Court's statement inThomas v. Collins3 4 2 that intrusions on free speech are justified "only ifgrave and impending public danger requires this."3 43 Brandenburg, ofcourse, is the modem version of the clear and present danger test. Soalthough Brandenburg and str ict scrutiny have never been formallylinked by the Court (or anyone else), it makes sense that an applica-tion of strict scrutiny to criminal advocacy would produce the Branden-burg test.

Let me be clear: I am not suggesting that the Court replace Bran-denburg with strict scrutiny. Strict scrutiny is a balancing test, and likeall balancing tests, it is subject to abuse and manipulation. To inde-pendently apply strict scrutiny in every prosecution for criminal advo-cacy would give judges too much discretion and speakers too littlenotice. It makes more sense to strike the balance at a categorical leveland adopt a detailed rule like Brandenburg to guide judges.

339 See supra note 294 and accompanying text.340 Stephen A. Siegel, The Death and Rebirth of the Clear and Present Danger Test, in

TRANSFORMATIONS IN AMERICAN LEGAL HISTORY 211, 223-25 (Alfred L. Brophy &Daniel W. Hamilton eds., 2009), available at http://ssrn.com/abstract=964553.341 Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring)

(emphases added).342 323 U.S. 516 (1945)343 Id. at 532 (emphases added).

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But there are several advantages to emphasizing the relationshipbetween the two doctrines. First, understanding Brandenburg as anapplication of strict scrutiny makes clear that criminal advocacy is fullyprotected speech. For a long time, free speech casebooks havetreated criminal advocacy as one of several unprotected categories ofspeech and the Brandenburg test as an exception to that rule.344 Butthis view is backwards. As my analysis in this Part shows, we shouldinstead view criminal advocacy as fully protected speech subject onlyto the qualifications of strict scrutiny. Stressing the link between Bran-denburg and strict scrutiny reinforces this view and elevates criminaladvocacy to the same plane as other fully protected speech.

Second, understanding Brandenburg as an application of strictscrutiny may lead courts to apply its test more rigorously. Strict scru-tiny has often been characterized as "'strict in theory, but fatal infact. "345 And although scholars have shown that this is an overstate-ment, judges are still very reluctant to uphold laws subject to strictscrutiny, especially where free speech is involved.3 46 Brandenburg,standing alone, might easily be dismissed by judges as an outlier thatdoes not demand strict adherence. But once it is understood as anapplication of strict scrutiny, it may invite greater respect.

Finally and most importantly, understanding Brandenburg as anapplication of strict scrutiny can help resolve some of its many ambi-guities. As noted above, there are numerous questions about theBrandenburg framework that remain unanswered: What does "immi-nent" mean? Is the gravity of the harm relevant? Does it matterwhether the speech takes place in public or private? Resolving theseand other questions has been difficult because we have had no coher-ent theory to explain the Brandenburg test. But once we recognize thatBrandenburg is an application of strict scrutiny, filling in its gapsbecomes easier. Not only does strict scrutiny provide a framework forthinking about Brandenburg, but it also provides a body of law to drawupon in working out the details. Unfortunately, as Part IV demon-strates, strict scrutiny does not provide as much guidance as onewould hope, in part because there are many unanswered questionsabout strict scrutiny itself. But as the Court resolves those questions infuture cases, we can further refine the Brandenburg test. In that way,the law governing criminal advocacy will develop alongside the law

344 See, e.g., SuLIVA & GUNTHER, supra note 218, at 1-50.345 SeeAdarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (quoting Ful-

lilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring)).346 See Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict

Scrutiny in the Federal Courts, 59 V AD. L. REv. 793, 794-98 (2006).

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governing other fully protected speech, and First Amendment doc-trine will achieve a measure of coherence that it currently lacks.

IV. FILLING IN THE BRANDENBURG FRAMEWORK

Now for the hard part. Having explained why criminal advocacyis entitled to protection and why Brandenburg provides the properlevel of protection, we must fill in its framework. The goal is to makeBrandenburg as precise as possible so that courts cannot easily circum-vent its protections in times of paranoia and fear. In pursuing thisgoal, however, it is important not to be seduced by the allure of abso-lute precision. This is law, after all, not science, and efforts to elimi-nate all uncertainty are usually forced and artificial. Therefore,although I aim in this Part to answer many of the lingering questionsabout Brandenburg, I resist the temptation to eliminate all ambiguity.The result, although perhaps less satisfying, strikes me as more realis-tic and sensitive to the limits of doctrinal reform.

A. What Does "Likely" Mean?

The first question is what it means to say that criminal advocacy is"likely" to produce lawless conduct. Neither the Supreme Court northe lower courts have addressed this question, but it is key to the Bran-denburg framework. If the government can punish speech that hasonly a slight chance of producing crime, Brandenburg will offer muchless protection than if the government is required to show that speechposes a more substantial risk of crime.

So how can we determine what level of probability is required? Ifwe view Brandenburg as an application of strict scrutiny, we can start byasking at what point the government's interest in preventing the riskof crime becomes compelling. Although the Supreme Court hasnever addressed this issue, it seems clear that, in general, the govern-ment does not have a compelling interest in preventing a very smallrisk of crime.347 If that were the case, the government could punisheven criticism of public officials, since such speech creates at leastsome risk that listeners will respond by breaking the law. On theother hand, it also seems clear that the government should not haveto establish that criminal advocacy is certain to lead to crime. It isnearly impossible to prove that an event is certain to happen-espe-cially when human responses are involved-and it would be unreason-able (and inconsistent with strict scrutiny) to adopt a standard that is

347 This is true at least with respect to crimes of ordinary gravity. In Part IV.C, Iconsider whether the answer varies depending upon the gravity of the harm.

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all but impossible to meet. As a starting point, therefore, we can saythat the degree of probability required under Brandenburg must fallsomewhere between a very small chance and certainty.

How might we narrow the range further? One possibility is tolook to other areas of law in which personal freedoms can beinfringed based on some probability of harm. Under Terry v. Ohio,3 48

for instance, police can stop and frisk an individual if they have rea-sonable suspicion that he has committed or is about to commit acrime and is armed and dangerous.349 The Court has never preciselydefined reasonable suspicion, but it has said that it is more than ahunch and must be based on specific and articulable facts. 350 Shouldthe same standard be applied to Brandenburg, so that the governmentcan prohibit criminal advocacy if there is a reasonable chance that itwill lead to crime? I do not think so. The Court has made clear thatTerry permits only a brief seizure and pat-down of an individual; itdoes not permit a custodial detention or even a full-body search.3 51 Ifthe government cannot conduct a full search of a person based onreasonable suspicion that a crime is about to be committed, it wouldseem odd to say that it can prohibit fully protected speech based onthe same level of probability.

What about probable cause? Although police cannot arrest anindividual on the basis of reasonable suspicion, they can arrest him ifthere is probable cause to believe he has committed or is committinga crime. 352 They can also search his car, 353 and, if they have a warrant,his person or home.354 As with reasonable suspicion, the Court hasnot precisely defined probable cause. But it has said that probablecause means a "substantial chance" or "fair probability," and that it ismore than reasonable suspicion but less than a "more likely than not"standard.3 55 Is this an appropriate standard for Brandenburg?. For thegeneral run of cases, I think it is.356 The "probable cause" standardwas written into the Constitution to protect people's interest in theprivacy of their "persons, houses, papers, and effects. ' 357 The right of

348 392 U.S. 1 (1968).349 Id. at 27.

350 See Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000) (citing Teny, 392 U.S. at27).

351 See Dunaway v. New York, 442 U.S. 200, 210-16 (1979).352 See United States v. Watson, 423 U.S. 411, 421-24 (1976).

353 See Chambers v. Maroney, 399 U.S. 42, 48-52 (1970).354 SeeJohnson v. United States, 333 U.S. 10, 14-17 (1948).

355 See Illinois v. Gates, 462 U.S. 213, 238, 243 n.13 (1983).

356 I consider exceptional cases in Part V.C.

357 U.S. CONST. amend. IV.

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privacy serves different functions than free speech, and the two some-times conflict. But there is no reason to think that privacy is lessimportant as a constitutional interest than free speech. Therefore, ifthe government can invade the right to privacy when there is a sub-stantial chance or fair probability that an individual has violated thelaw, it should be able to prohibit criminal advocacy that has a substan-tial chance or fair probability of leading to crime.3 58

Admittedly, this is not a precise formula. Even in the FourthAmendment context, courts have struggled to determine exactly whatis meant by "substantial chance" or "fair probability." But it does tellus that the government need not prove that criminal advocacy is morelikely than not to lead to unlawful conduct. It also tells us that thegovernment must establish more than reasonable suspicion, which isitself more than a hunch. So although the probable cause standarddoes not resolve all ambiguities about how likely it must be that crimi-nal advocacy will lead to crime, it provides a range of probability thatwill narrow the discretion of judges.

B. What Does "Imminent" Mean?

The next question is: What does "imminent" mean? Does immi-nent mean immediately, as the Court appeared to suggest in Hess v.Indiana?359 Or does imminent mean as much as five weeks away, as aCalifornia court of appeal held in People v. Rubin?3 60 Unlike the likeli-hood requirement, the imminence requirement is not directly relatedto the "compelling interest" prong of strict scrutiny. The governmenthas a compelling interest in preventing crime whether that crime islikely to happen imminently or in the future. But the imminencerequirement is indirectly related to the compelling interest prongbecause, as pointed out above, it is generally harder to predictwhether criminal advocacy is likely to lead to future crime than toimminent crime.361 In addition, and as also pointed out above, theimminence requirement is related to the "less restrictive alternative"

358 Greenawalt has proposed a similar standard, arguing that there must be a "rea-sonable likelihood" that criminal advocacy will lead to crime. GREENAWALT, supranote 73, at 266-68. Although Greenawalt does not define "reasonable likelihood," henotes that, at least for grave crimes, it would not require a showing that crime wasmore probable than not to occur. Id. at 267-68. For petty crimes, however, he arguesthat a "more-probable-than-not" standard might be appropriate. Id. I discusswhether the probability requirement should vary with the gravity of the harm in PartlV.C.359 See supra notes 73-75 and accompanying text.360 See supra notes 126-36 and accompanying text.361 See supra Part III.D.

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prong of strict scrutiny.3 62 Where criminal advocacy is likely to lead toimminent lawless conduct, the government has no alternative but tocriminalize the speech in the hope of deterring speakers from engag-ing in it. But where criminal advocacy is likely to lead to future lawlessconduct, the government can rely on police intervention, counter-speech, and the deliberation of listeners to prevent the crime fromoccurring. In determining what "imminent" means, therefore, wemust ask two questions: First, how imminent must the advocatedcrime be for a court to confidently assess the likelihood that it willoccur? Second, how imminent must the advocated crime be to makepolice intervention, counterspeech, and listener deliberation ineffec-tive as less restrictive alternatives?

As to the first question, it seems clear that, all other things beingequal, it is easiest to predict the likelihood that crime will occur whena speaker urges action within a very short time frame, such as five orten minutes. We can look at the relevant circumstances-the identityof the listeners and the speaker, the place, and the crime being advo-cated-and predict with some confidence whether the listeners arelikely to act on his advice. As the time frame expands outward, how-ever, the prediction becomes increasingly difficult because of themany unknowable variables involved. If a speaker urges a rowdy audi-ence to storm city hall five hours later, it may initially appear likelythat they will do so. But many things could happen between now andthen to dissuade them. The police might arrive. The listeners mightgrow bored. A thundershower might drive them home. Because wedo not know whether these things will happen, it is harder to predictwhether the listeners are likely to follow the speaker's advice than ifhe urged them to storm city hall immediately.

At what point does the prediction of likelihood become too spec-ulative to support the government's compelling interest in preventingcrime? There is no easy answer. Although it is certainly harder topredict whether listeners will commit a crime in five hours than in fiveminutes, it still seems possible to predict with some confidencewhether there is a "substantial chance" that the crime will occur.After all, we can look at the crowd to assess whether it might growbored and we can look at the sky to see whether dark clouds areapproaching. We may even be able to predict whether there is a sub-stantial chance that a crime will occur within twelve hours, twenty-fourhours, or, in some circumstances, within several days. But when aspeaker urges listeners to commit a crime more than several days inthe future, the number of unknowable variables seems so high that, in

362 See supra notes 324-32 and accompanying text.

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most cases, we would simply be speculating if we said that the crimewas likely to occur.

What about less restrictive alternatives? How imminent must theadvocated crime be for the alternatives I have identified to be ineffec-tive? Let us start with police intervention. When a speaker advocatescrime, there are several things that must occur for police interventionto be effective. The police must learn of the speech, investigatewhether it poses a serious threat, coordinate their response, anddeploy their resources to prevent the crime from occurring. If thepolice are fortunate enough to be on the scene in large numberswhen the speech takes place, they may be able to prevent even imme-diate crime from occurring. But in most cases, it is likely to take atleast a day or more for the police to even begin their efforts atpreventing the crime, and in some cases it may take longer. Preciselyhow long the police need will depend on a variety of circumstances,including whether the speech is made public-an issue I explore fur-ther in Part IV.D. But assuming that the speech is made public, itseems reasonable to say that, in most cases, the police need no morethan several days to take steps to prevent the crime from occurring.As I noted in Part III.D, those steps will not always be effective. Butpolice intervention is viable enough that it should at least be takeninto account when deciding whether there are less restrictive alterna-tives for furthering the government's interest in crime prevention.

The analysis for counterspeech is similar. For counterspeech tobe effective, the counterspeakers must be aware of the criminal advo-cacy, must prepare their rebuttal, and must find and reach listenerswho are likely to commit the crime. Unless they are present when thecriminal advocacy takes place, counterspeakers have little chance ofpreventing immediate crime. But assuming that the speech is madepublic, it seems reasonable to say that, in most cases, they need nomore than several days to communicate their message. Like policeintervention, counterspeech will not always be effective, and its suc-cess will depend on a variety of circumstances. But it is also viableenough to be given some weight in our assessment of less restrictivealternatives.

Finally, there is listener reflection and deliberation. How immi-nent must the crime be for this to be an ineffective alternative forfurthering the government's interest? Listener reflection is differentfrom the other two alternatives. Instead of relying on the actions ofthird parties, we are relying on the listener's conscience and fear todissuade him from following through on a crime he was initiallyinclined to commit. What is key, therefore, is that enough time passfor the listener's emotions to subside and for him to see things in a

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calmer, more rational light. How long does that take? Again, there isno easy answer. Some people are quick to anger and quick to calmdown, while others burn more slowly. For many people, however,something critical frequently happens overnight. Having slept on thematter, they often view the situation differently in the morning, sothat what seemed enormously important the day before seems lesspressing now. This does not always happen, of course. Sometimes ittakes several days for a person to calm down, and sometimes theynever do. But in most cases, a few nights of sleep and a few days ofreflection should be sufficient to diminish the likelihood that the lis-tener will commit the crime.

What conclusion can we draw from this analysis? In general, itseems as though several days is the critical time period. When aspeaker urges crime within that time frame, we can predict with someconfidence whether the crime is likely to occur, and there is usuallynot enough time for police intervention, counterspeech, or listenerreflection and deliberation to be effective. But when a speaker advo-cates crime outside that time frame, our prediction about whether thecrime will occur becomes too speculative, and police intervention,counterspeech, and listener deliberation become viable alternatives tothe regulation of speech. There is no guarantee that any one of thesealternatives will be successful in a given case. But taken as a groupand given the time frame involved, there is no reason to think theywill be less effective than prohibiting the speech. Therefore, speechgenerally should be protected unless it is intended to and likely toproduce crime within several days.

C. Is the Gravity of the Harm Relevant?

So far, I have considered how we should apply the likelihood andimminence requirements in the general run of cases. But one mightargue that these requirements should vary depending upon the grav-ity of the harm that is feared. That is, one might think we shouldapply different standards to speakers who advocate minor crimes thanto speakers who advocate more serious crimes.

Let me begin by saying that I do not think the likelihood andimminence requirements should be treated as sliding scales that varyfrom case to case. If courts were permitted to fine-tune these require-ments depending upon the particular crime advocated, judges wouldhave too much discretion and speakers would have too little notice.Such fine-tuning might also result in an absurd proliferation of stan-dards for the many different crimes on the books. Far better to adopt

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a single standard for the general run of cases even if that standard isnot perfectly tailored to every fact pattern that arises.

That said, I do think it makes sense to adjust Brandenburg at themargins for extremely minor crimes and extremely serious crimes.These two categories of crime raise issues that are sufficiently distinctto warrant independent analysis under strict scrutiny. Moreover, byadopting separate standards for these categories, we can make Bran-denburg more responsive to exceptional circumstances without givingjudges too much discretion.

So how should we treat these two categories of crimes? First, con-sider extremely minor crimes. In Whitney, Brandeis argued that "evenimminent danger cannot justify" restrictions on speech "unless theevil apprehended is relatively serious."3 63 To illustrate this point,Brandeis argued that although the government could prohibit tres-pass, it could not prohibit speakers from asserting "that pedestrianshad the moral right to cross unenclosed, unposted, waste lands ...even if there was imminent danger that advocacy would lead to atrespass. "364

I agree with Brandeis for the most part. The government doesnot have a compelling interest in enforcing the law for its own sake. Ifit did, any ban on speech could be justified by the government's inter-est in enforcing that ban, and the compelling interest analysis wouldbecome a tautology. Instead, the government has a compelling inter-est in enforcing only those laws that themselves further compellinginterests. Thus, the government could prohibit advocacy of murder(where the advocacy is intended to, and likely to, produce imminentmurder) because the law against murder furthers the government'scompelling interest in preserving human life. But the governmentcould not prohibit advocacy of jumping rope even if jumping ropewere a crime (and even if the advocacy was intended to, and likely to,produce imminentjumping rope) because a law againstjumping ropedoes not further a compelling governmental interest.365

What about extremely serious crimes? If the government cannotprohibit advocacy of extremely minor crimes because it lacks a com-pelling interest, should the government have more leeway to prohibitadvocacy of extremely serious crimes because its interest is especially

363 Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).364 Id. at 378.365 The Supreme Court has never provided a list of compelling interests, so it is

unclear which laws serve compelling interests. But it seems likely that most lawsaddressing legitimate threats to the safety and health of the community further acompelling interest, and thus this limitation on the government's power to restrictcriminal advocacy is not a significant one.

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compelling? I think the answer is yes. Strict scrutiny is a balancingtest that weighs the individual and societal interest in protecting fun-damental rights against the government's interest in pursuing impor-tant ends. In most cases involving criminal advocacy, the appropriatebalance between these competing interests is achieved by applying thelikelihood and imminence standards proposed above. But there aresome cases in which the government's interest is so overwhelming thatthese standards seem inadequate. Consider a speaker who advocates anuclear attack on the United States. Can we really say that the govern-ment's interest in prohibiting this speech is only compelling if there isa substantial chance that it will lead to a nuclear attack? Doesn't thegovernment have a compelling interest in preventing even a slightchance of such a devastating event? Likewise, is it really plausible tosay that this speech can be prohibited only if it is likely to lead to anuclear attack within several days? We may be confident that policeintervention, counterspeech, and listener reflection are ordinarily suf-ficient to prevent crime urged more than several days in the future.But what if we are wrong? Are we prepared to take the chance thatadvocacy of a nuclear attack two weeks in the future will not bethwarted by these alternatives? I doubt we are.

If I am right and there are some cases so serious that differentstandards should apply, we must answer two questions. First, whichcases fall into this category? And second, what standard should applyto those cases? With respect to the first question, I would embrace asuggestion made by Eugene Volokh in the context of crime-facilitat-ing speech. Volokh argues that protection for such speech generallyshould not turn on the severity of the harms it facilitates.3 66 Like me,he thinks allowing judges to adjust protection based on the severity ofthe harm will reduce predictability for speakers.3 67 He also arguesthat there is no easy way for judges to draw lines between serious andnon-serious harms and that, over time, any lines they draw will gradu-ally be pushed downward.3 68 However, Volokh argues that we shouldmake an exception for speech that facilitates extraordinarily seriousharms, such as nuclear or biological attacks that could lead to thedeath of tens of thousands of people.369 Cases involving harms of thismagnitude, he argues, are so "outside the run of normal circum-

366 Volokh, supra note 34, at 1209-12, 1217.367 Id. at 1207.368 Id.369 Id. at 1210.

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stances" that they can easily be identified and "would always be seen ashighly unusual exceptions to the normal rule of protection. 37 °

Volokh's approach makes sense. If the category of extremely seri-ous crimes were drawn broader, say to include any crime that couldlead to physical injury or death, the protections of Brandenburg wouldbe significantly compromised. Many encouragements of crime could,if successful, result in death. Think of speakers who urge their listen-ers to riot, storm city hall, rob banks, resist the draft, sabotage militaryfacilities, harm abortion doctors, or take illegal drugs. Moreover, asVolokh points out, freedom of speech, like other civil liberties,requires us to run certain risks, including an elevated risk that somelives will be lost. 371 So the possibility that criminal advocacy will leadto injury or death does not seem sufficient to depart from the ordi-nary rules. But when the harm is catastrophic-mass casualties, enor-mous destruction of property, major disruption to the economy-wecan, without substantially eroding free speech and without venturingtoo far on the slippery slope, give the government more leeway toprevent the harm from occurring.

So what standard should apply to these cases? As noted above, itseems implausible to say that the government can only prohibit advo-cacy of extraordinary harm if there is a substantial chance that theharm will occur. But the government should also have to show morethan a theoretical possibility. Advocacy of even the gravest crimes usu-ally has value, and if there is virtually no chance that it will lead toharm, it should be protected. As a middle position, therefore, wemight conclude that the government can prohibit advocacy ofextraordinary harm if there is a "reasonable chance" that the harmwill result. Thus, if I stand on a street corner with a sign saying "Stopthe Evil Empire-Nuke the U.S.," the government does not have acompelling interest in prohibiting my speech. But if a retired five-stargeneral urges a large group of disaffected munitions officers todetonate chemical weapons in New York, and they have access to suchweapons, the government probably does have a compelling interest inprohibiting his speech.

In addition, we should require some showing of imminence.Although I argued above that government should not have to showthat extraordinary harm will occur within several days, it should notbe permitted to prohibit speech that could lead to extraordinary harmonly in the distant future. It is simply too difficult to predict what willhappen in the distant future, and the risk is too great that officials

370 Id. at 1211.371 Id. at 1208-09.

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would use this power to punish critics in times of paranoia and fear.This is what happened in the 1950s when communists were prose-cuted on the theory that their teachings would eventually lead to anattempted overthrow of the government.372 Therefore, unless crimi-nal advocacy poses a reasonable threat of leading to extraordinaryharm within the foreseeable future-say, within a year-it should beprotected.

One might object that modifying the standard for advocacy ofextremely serious crimes will undermine the integrity of Brandenburg.This is a reasonable concern, but I think it is mitigated by narrowlydefining the category of crimes that qualify as extremely serious.Moreover, there are probably few cases where criminal advocacy posesa reasonable chance of leading to extraordinary harm within a year.Crime-facilitating speech, such as instructions on how to build anuclear or biological weapon, seems much more likely to create thiskind of risk. Thus, the exception for extremely serious crimes shouldnot significantly limit the reach of Brandenburg.

D. Public v. Private Speech and Ideological v. Nonideological Speech

If we modify Brandenburg for advocacy of extremely minor crimesand extremely serious crimes, should we also modify it based onwhere the advocacy takes place and whether it is ideological ornonideological in nature? Kent Greenawalt argues that we should. InSpeech, Crime, and the Uses of Language, Greenawalt divides criminaladvocacy into four categories: (1) public ideological advocacy; (2)public nonideological advocacy; (3) private ideological advocacy; and(4) private nonideological advocacy.373 Greenawalt argues thatspeech in the first category, which takes place in public and has anideological motive or appeal, should receive the most protection, andhe proposes a standard similar to Brandenburg.374 Speech in thefourth category, which takes place in private and lacks ideologicalmotive or appeal, should receive almost no protection; governmentneed only prove serious intent on the part of the speaker. 375 Andspeech in the middle two categories, which either takes place in pub-lic and is nonideological or takes place in private and is ideological,should receive an intermediate level of protection. 376

372 See supra notes 41-42 and accompanying text.373 GREENAWALT, supra note 73, at 260-71.374 Id. at 266-69.375 Id. at 261-65.376 For private ideological speech, Greenawalt argues, the government should be

required to show only that the speech presents a significant danger of criminal harm.

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In order to assess Greenawalt's framework, we must consider thedistinctions he draws between public and private speech and ideologi-cal and nonideological speech. As to the first distinction, Greenawaltargues that private criminal advocacy contributes less to the valuesunderlying the First Amendment than public criminal advocacy.Because private speech is not widely circulated, he suggests, it has lessimpact on the search for truth and self-government. 377 He also arguesthat private advocacy is more dangerous than public advocacy becausethere is less opportunity for police intervention and counterspeech toprevent the crime from occurring.3 78

Although Greenawalt's arguments have some merit, I am not per-suaded. The extent to which speech contributes to the First Amend-ment's underlying values is not necessarily a function of where it takesplace or how many people hear it. A silly argument made publicly toone thousand people may contribute less to the search for truth andself-government than a good argument made privately to ten people,especially if those ten people are likely to repeat the argument. More-over, basing protection on the size of the audience has dangerousimplications. It suggests that courts should offer more protection tospeech in the mainstream that reaches millions of listeners than tospeech on the fringes that reaches only a fraction of that audience.

Greenawalt is correct that police intervention and counterspeechare less effective at combating private criminal advocacy than publiccriminal advocacy. When a speaker privately urges a group of listen-ers to break the law, the police and counterspeakers may not be awareof the advocacy and therefore cannot respond to it directly. But thatdoes not mean these alternatives are entirely ineffective. Even whencriminal advocacy takes place in private, the police may still learnabout it, either directly through listeners or indirectly through wordof mouth.3 79 Moreover, just because speech takes place in privatedoes not mean listeners are not exposed to counterspeech. Aspointed out in Part III.D, counterspeech does not always follow crimi-nal advocacy; it sometimes precedes it or takes place at the same time.Thus, if a speaker privately urges a group of listeners to kill abortiondoctors, counterspeakers may not be aware of that speech. But theylikely have already argued that killing abortion doctors is wrong. And

Id. at 270. He proposes the same standard for public nonideological speech that iscommercial in nature. -d. at 271.377 Id. at 116 (arguing that when speech is private, "any 'enlightenment' the mes-

sage provides will be limited").378 Id.379 Police may also already be monitoring the speaker and the listeners if they are

members of a group that has caused trouble in the past.

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they are likely to continue making these arguments even if they do notknow about a particular instance of criminal advocacy.

Perhaps the biggest problem with Greenawalt's argument is thedifficulty of drawing lines. How would we determine whether speechis public or private? One possibility is to count the listeners, so that aspeech given to fewer than, say, ten people would be considered pri-vate. But that suggests that a speech outside city hall to an audienceof five is private-surely an odd result. Another possibility is to askwhether the speech is open to the general public. But that suggeststhat a speech given to two hundred people at a country club is pri-vate-another odd result. We might combine the two factors and saythat a speech given to a small group of people in a nonpublic space isprivate. But what if I send an email to six people urging them tobreak the law? Is that private because it is not generally accessible orpublic because it is sent over the Internet and can easily be forwarded?Or what if I give a speech to four colleagues in my office at work? Isthat private because the school is not open to the public, or is it publicbecause the office is owned by my employer and hundreds of peoplewalk by it every day? Does it matter if the door is open or closed? 380

Greenawalt acknowledges the difficulty of drawing these lines,but argues that it is not particularly troubling in this context becausespeakers who advocate crime in private usually do so as part of a con-spiracy or an offer of inducement, neither of which is protected by theFirst Amendment.38' I agree with this last point, but do not think itsupports his conclusion. If those who advocate crime in private canusually be punished for conspiracy or solicitation, we do not need toeliminate Brandenbures protections for criminal advocacy; we can sim-ply enforce the laws against conspiracies and solicitation. That way,government can prevent the harm, and we can avoid drawing ques-tionable lines that could be manipulated by courts and lessen predict-ability for speakers.

I have similar concerns about Greenawalt's distinction betweenideological and nonideological speech. Greenawalt says criminaladvocacy lacks ideological motive or appeal if it is "without seriousreference to duty, right, overall welfare, or some historical, philosoph-ical, political, or religious view that would make the crime appropri-ate."3 82 As an example, he describes a scenario in which a man who

380 Greenawalt says the crucial difference is whether the message is "communi-cated in a way in which its content can become known to a wide audience." GREENA-

WALT, supra note 73, at 271. As my examples illustrate, this is not an easydetermination to make.

381 See id. at 263.382 Id. at 261.

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expects to inherit under his uncle's will writes to his cousin urging herto kill the uncle so that they can both profit financially.3 83 Accordingto Greenawalt, the value of this speech is so negligible compared tothe threat it poses that protecting it would "misinterpret the signifi-cance of free speech and do so in a setting that thoughtful peoplewould find disturbing. '384

As an initial matter, I should point out that Greenawalt does notdeny that nonideological speech has value. In an earlier chapter, hewrites that there is value in even personal and trivial speech, such as"Your boyfriend is considerate. '3 85 Instead, his argument is that thevalue of nonideological criminal advocacy is vastly outweighed by thethreat it poses. This is a plausible argument, but it assumes that wecan easily distinguish between ideological and nonideological speech.In practice, this is likely to be quite difficult. How would courts deter-mine whether advocacy makes serious reference to right, duty, or over-all welfare? Is it sufficient if the speaker uses the word "right," as in'You have a right not to pay income taxes"? If so, it is hard to see whatis gained by Greenawalt's distinction, since people who advocatecrime could simply tell listeners they have a right to commit thatcrime. On the other hand, requiring speakers to explain the sourceand nature of the right would disadvantage the less educated andarticulate. And how would courts determine whether advocacy makesreference to "some historical, philosophical, political, or religiousview?" Consider the statement "You should smoke pot because it feelsgood." This might be seen as an appeal to self-interest, which wouldnot count as ideological under Greenawalt's definition. 38 6 But itmight also be seen as an appeal to defy the conventions of bourgeoissociety and experience the pleasures of nature. Would a speaker haveto use my grandiose language to be protected? If so, thoughtful peo-ple might also find that result disturbing.

It is true that the Court has drawn similar distinctions in othercontexts. In Connick v. Myers,387 it held that public employees are pro-tected by the First Amendment when they speak on matters of publicconcern, but not matters of private concern. 388 And in Dun & Brad-street, Inc. v. Greenmoss Builders, Inc.,38 9 it held that the standard fordamage awards in defamation cases depends on whether the speech

383 Id. at 116, 261.384 Id. at 263.385 Id. at 44-46.386 Id. at 116, 271-72.387 461 U.S. 138 (1983).388 Id. at 146-47.389 472 U.S. 749 (1985).

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concerns matters of private or public concern. 390 But the Court's line-drawing efforts in these areas have not been reassuring. In Connick, itheld that the issue of morale in the district attorney's office was not ofpublic concern3 9 1 even though such issues are frequently raised inpolitical campaigns. And in Dun & Bradstreet, it held that a construc-tion company's credit report was not of public concern 392 eventhough the financial health of local companies is frequently discussedin the business pages of local newspapers. Perhaps the Court wouldhave more success drawing the line between ideological and nonideo-logical speech. But given its track record, we should not take that risk.Instead, we should apply Brandenburg's protections to all criminaladvocacy, no matter what the nature of its appeal.

E. Brandenburg in War and Peace

The next question is whether Brandenburg applies during times ofwar as well as peace. This question was raised in a recent article byRonald Collins and David Skover.39 3 Noting that Brandenburg did notinvolve "speech that interfered with war efforts,' 394 they suggest thatBrandenburg might be interpreted to apply only in times of peace. 395

Although Collins and Skover do not agree with this interpretation,they say it is conceivable that government lawyers would propose itand that the Court would accept it.396 I agree that Brandenburg mightbe interpreted this way, but think it clear that, correctly interpreted, itapplies during both peace and war.

To start with, there is no reason Brandenburg should not apply toadvocacy of ordinary crimes during war. If a speaker urges listeners tokill abortion doctors or use illegal drugs, the fact that the country is atwar has no bearing on whether that speech should be protected. Thegovernment's interest in preventing ordinary crime is not more com-pelling during war, and the less restrictive alternatives that are availa-ble during peace are also available during war. One might argue thatadvocacy of ordinary crimes would distract from the war effort andrequire the government to divert valuable resources from the militaryto law enforcement. But most wars (like the current one) do notrequire the complete and undivided attention of government such

390 Id. at 760-61 (plurality opinion).391 Connick, 461 U.S. at 148.392 Dun & Bradstreet, 472 U.S. at 761-62 (plurality opinion).393 Ronald K.L. Collins & David M. Skover, What Is War?: Reflections on Free Speech in

"Wartime, "36 RUTGERS L.J. 833, 834 (2005).394 Id. at 849.395 Id. at 848-53.396 Id. at 850-51.

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that basic law enforcement is compromised. And even during all-con-suming wars (like World War II), it is pure speculation to say thatadvocacy of ordinary crime will affect the war. It is also dangerousbecause it suggests that government can infringe other rights-suchas due process and the requirements of the Fourth Amendment-onthe ground that compliance with them would divert time and energyaway from the war.

Of course, advocacy of ordinary crime is not what governmentworries about during war. Instead, it worries about advocacy of crimethat is directed at the war effort, such as the sabotage of military basesor mass strikes or draft resistance. Does Brandenburg apply to this typeof advocacy? This question is largely answered by my discussion inPart IV.C. There, I explained that advocacy of even extraordinaryharm should be protected unless the government makes some show-ing of likelihood and imminence. 397 However, because the govern-ment's interest in preventing extraordinary harm is especiallycompelling, the normal likelihood and imminence requirementsshould not apply.398 Instead, the government should be permitted toprohibit such speech where there is a "reasonable chance" that it willlead to extraordinary harm within the foreseeable future. 399 Thisstandard also seems appropriate for advocacy of crime directed at thewar effort. Where there is a "reasonable chance" that such advocacywill lead to extraordinary harm within the foreseeable future, the gov-ernment should be permitted to prohibit it. But where the govern-ment cannot make this mninimal showing, advocacy of even thc gravestcrimes during war should be protected.

A related question is whether Dennis v. United States400 is still goodlaw. Recall that the Court in Dennis upheld the convictions of Com-munist Party leaders on charges of conspiring to advocate overthrowof the U.S. government.40 1 In doing so, the Court adopted LearnedHand's formulation of the clear and present danger test, asking"'whether the gravity of the "evil," discounted by its improbability, jus-tifies such invasion of free speech as is necessary to avoid the dan-ger.'- 4 02 According to Collins and Skover, neither Dennis nor many ofthe World War I speech cases have ever been formally overruled. 40 3

397 See supra notes 366-72 and accompanying text.398 See supra notes 371-72 and accompanying text.399 See supra notes 371-72 and accompanying text.400 341 U.S. 494 (1951).401 See supra note 29 and accompanying text.402 Dennis, 341 U.S. at 510 (plurality opinion) (quoting United States v. Dennis,

183 F.2d 201, 212 (2d Cir. 1950)).403 See Collins & Skover, supra note 393, at 849.

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Therefore, they say, it is possible that these cases could make a "consti-tutional come-back."404

Collins and Skover are correct that Brandenburg did not formallyoverrule Dennis. To the contrary, the Court cited Dennis as supportfor its holding and portrayed the Brandenburg test as a simple applica-tion of Dennis and Yates v. United States.40 5 As pointed out in Part I.A,however, this claim was transparently disingenuous. 40 6 Although Den-nis and Yates limited the reach of the Smith Act to advocacy of action(as opposed to advocacy of ideas), neither decision suggested thatspeakers could only be punished if they advocated imminent action."The essential distinction," Yates held, "is that those to whom theadvocacy is addressed must be urged to do something, now or in thefuture, rather than merely to believe in something. '40 7 Nor did eitherdecision suggest that speakers could be punished only if their advo-cacy was likely to produce unlawful conduct. Although the formulaadopted in Dennis does take into account the probability of harm, itdoes so only in relation to the gravity of that harm. Thus, it permitsgovernment to punish speech that poses virtually no risk of harm ifthe feared harm is grave enough.

One might suggest that even though Dennis and Brandenburgapplied different legal tests, the results of the two cases can be recon-ciled. But they cannot. If we apply the Brandenburg test to the facts ofDennis, it is clear that the convictions should have been reversed.There was no evidence that the defendants had urged imminent over-throw of the government or even an imminent attempt of overthrow,no matter how broadly we define "imminent."40 8 At best, the evidenceshowed that they organized the Communist Party to advocate Marxist-Leninist doctrine so that an overthrow might be attempted at someindefinite future date.40 9 There was also no evidence that an over-throw was likely, even if we apply the "reasonable chance" definitionof likelihood I have proposed for extremely serious crimes. 410 Per-haps there was a reasonable chance that an overthrow would beattempted. But it is not clear that any attempt launched by the Com-

404 Id. at 853.405 See supra note 60 and accompanying text.406 See supra notes 60-61 and accompanying text.407 Yates v. United States, 354 U.S. 298, 324-25 (1957) (second emphasis added).

408 See supra note 372 and accompanying text (proposing a broader definition of"imminent" for advocacy of extremely serious crimes).

409 Dennis v. United States, 341 U.S. 494, 497 (1951) (plurality opinion).

410 See supra Part IV.C.

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munist Party of the 1950s would qualify as an extremely seriouscrime. 41 1 And in any case, no attempt was foreseeable.

With Brandenburg and Dennis thus hopelessly at odds, whichshould prevail? The answer is Brandenburg. Dennis was decided with-out a majority opinion in 1951 and was significantly underminedwithin a decade by Yates and two other Smith Act cases, Scales v. UnitedStates412 and Noto v. United States.413 Brandenburg was decided unani-mously in 1969 and was reaffirmed by two subsequent decisions, Hessv. Indiana and NAACP v. Claiborne Hardware Co.414 It is true that bothof these cases might have been decided without invoking Branden-burg.415 But the Court repeated the Brandenburg test in both cases andnever cast any doubt on its viability.416 As a result, it seems clear thatDennis is a remnant of abandoned doctrine that is no longer entitledto any weight as precedent.4' 7

F. Is Advocacy of Terrorism Different?

The final question is whether there is anything about the currentterrorist threat that makes Brandenburg inapplicable. When I teachthe First Amendment, most of my students agree that Schenck, Whitney,and Dennis were bad decisions motivated by fear and paranoia. Butwhen I pose a hypothetical involving advocacy of terrorism, they fre-quently change their tune. Terrorism is different, they say, and thosewho advocate it should not be protected by the First Amendment.The question is, are they right? Is terrorism different, and if so, why?

Most of the arguments one might make for treating terrorism dif-ferently have been addressed in earlier parts of this Article. Forinstance, one might claim that advocacy of terrorism should not be

411 See supra Part 1V.C (describing extremely serious crimes as those involving masscasualties, enormous destruction of property, or major disruption to the economy).

According to Justice Douglas' dissent in Dennis, the Communist Party "ha[d] been so

thoroughly exposed in this country that it ha[d] been crippled as a political force."341 U.S. at 588 (Douglas, J., dissenting).412 367 U.S. 203, 222 (1961) (holding that an individual could be convicted under

Smith Act's membership clause only if he was an "active" member with the specific

intent to further the group's unlawful ends).413 367 U.S. 290, 297-300 (1961) (reversing the conviction of a Communist Party

member under the Smith Act because there was insufficient evidence that the Partyadvocated violent overthrow of the government).414 See supra notes 64-83 and accompanying text.415 See supra notes 64-83 and accompanying text.416 See supra notes 64-83 and accompanying text.417 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854-55 (1992) (stat-

ing that stare decisis does not apply where "related principles of law have so far devel-oped as to have left the old rule no more than a remnant of abandoned doctrine").

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protected because terrorism can cause extraordinary harm. With thespread of technology and the ease of international travel, terroristshave the potential to cause enormous destruction through the use ofchemical, biological, and perhaps even nuclear, weapons. 418 I agreethat this is a deeply troubling prospect, but have already dealt with itin Part 1V.C. There, I explained that advocacy of even the gravestcrimes usually has value and should be protected if there is virtuallyno chance it will lead to harm. However, I also explained that thegovernment should have more leeway to prohibit advocacy ofextraordinary harm because its interest in preventing such harm isespecially compelling. Thus, where there is a reasonable chance thatcriminal advocacy (including advocacy of terrorism) will lead toextraordinary harm in the foreseeable future, it should not be pro-tected.419 This standard takes seriously the government's interest inpreventing the extraordinary harms of terrorism while also protectingspeech that poses virtually no threat of harm.

One might also argue that advocacy of terrorism is differentbecause of the covert nature of terrorist operations. 420 Those whoadvocate terrorism rarely do so in the public square. Instead, theyusually communicate their desires secretly, which makes it harder forthe police to intervene and for other speakers to rebut their argu-ments. I am not certain that the assumption underlying this argu-ment is true; many Islamic jihadists seem quite willing to advocateterrorism openly. But even if true, it does not justify an abandonmentof Brandenburg. As explained in Part IV.D, police intervention andcounterspeech may be less effective at combating private advocacy,but they are not entirely ineffective. Most terrorist suspects are likelybeing monitored by the police already, and opponents of terrorismare likely to engage in counterspeech regardless of whether advocacyof terrorism takes place in public. More importantly, it would beextremely difficult for courts to draw a clear line between privateadvocacy and public advocacy. Therefore, the fact that advocacy ofterrorism sometimes (or often) takes place in private is not a reasonfor treating it differently from other criminal advocacy.

Finally, one might argue that advocacy of terrorism simply has novalue in our society. In a recent book, Richard Posner argues that thetenets of Islamic holy war, unlike communism, are so far outside themainstream of Western thought that they have no First Amendment

418 See RicHARD A. POSNER, NOT A SUICIDE PACT 2 (2006).419 See supra notes 366-72 and accompanying text.

420 See Robert S. Tanenbaum, Comment, Preaching Terror: Free Speech or WartimeIncitement?, 55 Am. U. L. REv. 785, 816-17 (2006).

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value. 4 2' As an initial response, I would question Posner's use of West-ern thought as the yardstick against which the value of speech is mea-sured. If ideas outside the Western tradition can contribute to thesearch for truth, self-government, and self-fulfillment-and there isno reason to think they cannot-it is unclear why they should beviewed as lacking value. But even accepting Western thought as theyardstick, Posner's claim is highly debatable. Many of the issuesaddressed by Islamic jihadists-the role of religion in society, the con-flict between religious and secular values, the decline of morality-areextremely relevant within Western society. In fact, the battle betweenfundamentalism and liberalism that has fueled Islamic jihad has alsosparked a culture war in the United States. It is true that the methodsadvocated by Islamic jihadists are extreme and radical. But that doesnot make their speech less valuable, only more unsettling. And sup-pressing speech because it is unsettling is contrary to the best aspectsof our First Amendment tradition.

CONCLUSION

Brandenburg v. Ohio was a major breakthrough for freedom ofspeech. After its long struggle to define the boundaries of the FirstAmendment, the Court embraced an enlightenment view of freespeech that rejected the fear and paranoia of the past. But Branden-burg is not the end of the story. As the al-Timimi case shows, 9/11 andthe threat of terrorism pose a significant challenge to free speech andhighlight the many ambiguities in the Brandenburg test that have neverbeen adequately resolved.

This Article both strengthens and clarifies Brandenburg. By focus-ing on the values that underlie the First Amendment, it makes clearwhy criminal advocacy is entitled to protection and why Brandenburgprovides the proper level of protection. In addition, by reconceptual-izing Brandenburg as an application of strict scrutiny, it provides aframework for answering the many unresolved questions about its test.This framework does not always yield precise or easy answers. But itdoes focus the inquiry and provide long-needed guidance to courts sothat Brandenburg will survive the current, and any future, crisis.

421 POSNER, supra note 418, at 113-14.

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